Smith Kline & French Laboratories (Australia) Limited & Ors v Commonwealth of Australia & Ors; Carson v John Fairfax & Sons Limited; Carson v Slee

. '

• ,~~· ,, .. ;;,,.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S95 of 1991
B e t w e e n -

SMITH KLINE & FRENCH
LABORATORIES (AUSTRALIA)
LIMITED A.C.N. 0071580;
SMITH KLINE & FRENCH
LABORATORIES LIMITED;
SMITHKLINE BEECHAM CORPORATION;
LABORATOIRE SMITH KLINE &
FRENCH SA and SMITH KLINE

DAUELSBERG GmbH

Plaintiffs

and
THE COMMONWEALTH OF AUSTRALIA,
THE SECRETARY TO THE DEPARTMENT
OF COMMUNITY SERVICES AND
HEALTH and ALPHAPHARM PTY
LIMITED

Defendants

Questions referred

Office of the Registry

Sydney No S97 of 1991
B e t w e e n -
NICHOLAS RODERICK CARSON

Smith Kline(3)

29/8/91

Plaintiff

and
JOHN FAIRFAX & SONS LIMITED
(RECEIVERS & MANAGERS
APPOINTED)

Defendant

Demurrer

Office of the Registry

Sydney No S99 of 1991
B e t w e e n -
NICHOLAS RODERICK CARSON

Plaintiff

and
JOHN SLEE and JOHN FAIRFAX &
SONS LIMITED (RECEIVERS &
MANAGERS APPOINTED)

Defendants

Demurrer

Office of the Registry

Sydney No S98 of 1991
B e t w e e n -
NICHOLAS RODERICK CARSON

Appellant

and
JOHN FAIRFAX & SONS LIMITED
(RECEIVERS & MANAGERS
APPOINTED)

Respondent

Objection to competency

Office of the Registry

Sydney No Sl00 of 1991

B e t w e e n -
NICHOLAS RODERICK CARSON

Appellant

and
JOHN SLEE and JOHN FAIRFAX &
SONS LIMITED (RECEIVERS &
MANAGERS APPOINTED)

Respondents

Objection to competency

Smith Kline(3)	2	29/8/91
MASON CJ BRENNAN J DEANE J DAWSON J TOOHEY J GAUDRON J McHUGH J
TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 AUGUST 1991, AT 9.33 AM

MASON CJ:	Mr Ellicott.
MR R.J. ELLICOTT, QC:	May it please the Court, I appear

with PROF. L.R. ZINES and MR M.R.J. ELLICOTT for
the plaintiff in the Smith Kline matter.
(instructed by Minter Ellison) and I appear with
MR G. O'L. REYNOLDS for the plaintiff in the
Fairfax matter. (instructed by Blake Dawson
Waldron)

MR D.M.J. BENNETT, QC:

May it please the Court, I appear

with my learned friend, MR I. HARVEY, for the first
and second defendants in the Smith Kline matter and
for the Attorney-General intervening in the Carson matters and we are intervening in the interests of the defendants. (instructed by the Australian
Government Solicitor)

MR D.F. JACKSON, QC:

May it please the Court, I appear with

my learned friend, MR S.D. RARES, for the
defendants in the two Fairfax matters which are
actions and for the respondents in their objections
to competency to the appeals; meaning by that, the
respondents to the appeals. (instructed by
Mallesons Stephen Jaques)

MR H.C. BERKLEY, QC, Solicitor-General for the State of

Victoria: If the Court pleases, I appear with my learned friend, MR S.G. O'BRYAN, for the Attorney-General for the State of Victoria and also for the Attorney-General for the States of
Queensland, Tasmania and South Australia and

Western Australia. And we think we intervene in

Smith Kline(3)

29/8/91

the interests of the Court and anybody else who is
supporting the legislation. (instructed by the
Crown Solicitors for Victoria, Queensland,
Tasmania, South Australia and Western Australia)

MASON CJ:

You will let us know if there is any change of

heart.

MR BERKLEY: There will be no changes of heart, we can

assure Your Honour.

MR J.J.J. GARNSEY, QC:

May it please the Court, I appear

with my learned friend, MR R.W. WHITE, for the
third defendant, Alphapharrn Pty Limited, in the
matter first listed and I also appear with Mr White
in two matters which are subsequently listed, being
applications for leave to appeal. (instructed by
Mallesons Stephen Jaques)

MASON CJ: Yes. Mr Ellicott.

MR ELLICOTT:

Your Honours, I take it that Your Honours have

a copy of our submissions.

MASON CJ: Yes.

MR ELLICOTT:

They had to be filed as of last Friday and

they were filed so I had not bothered to hand them
in again.

MASON CJ:

They have been filed and read.

MR ELLICOTT:

And they have not been changed.

Your Honours,

this matter is of considerable significance. It is
of considerable significance because first of all
it relates to my clients who assert rights of
appeal before this Court, and as such, they would
submit to this Court that under the Constitution
they have that right, and that it could not be
taken away from them except by some measure which
was an exception under section 73 of the

Constitution.
It is also of some significance because in a
sense it is probably, I do not know, but so far as
my knowledge goes it is probably the first time the
Court really has had to look at its role itself.
The Court may not agree with that, but this case
does raise in a very significant way the role of
the Court.
Now, sections 73 and 74 as part of Chapter III

of the Constitution were, at the time of Federation
and, of course, are still seen, particularly
section 73 - section 74 has fallen into
desuetude - as pivotal provisions to the judicature

provisions of the Constitution. They are the

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provisions, strangely enough, which lay at the heel of the hunt in relation to the imperial decision to actually approve of the Constitution, and the role
of the High Court at that time as perceived, vis-a-
vis the Privy Council, was a matter of great
debate.
One thing that we would submit is clear and

that was that this Court was seen at that time, and therefore should still be seen, as not only a final
court of appeal, but also a Court to which, with
whatever exceptions, and later I will put some
submissions about exceptions, the litigant in
Australia can come to this Court and have his or
her issue debated as of right. It is fundamental
to the judicial power of the Commonwealth in its
very nature that it involves the determination of the rights and obligations of litigants. That is the very substance of judicial power and basic to the formation of this Court as part of the three
institutions of government, we submit, was the view
and the idea that people should come here as a
right, not to be turned away by discretion, not to
be told, "This is not an important matter", not to
be told that the public review is more important
than the private rights of litigants, because, in
the long run, this Court is the only ultimate
bastion of the rule of law.
Now, I have to say, and I mean no offence to

the Court, that under the special leave
provisions - and I am speaking generally at the
moment and I hope the Court will bear with me in
that respect, I will come to precise submissions a
little later, but not too much later - that the
citizen can come to this Court now and be turned
away, even though, if the court looked at the
matter, the Court would decide that the court below

was wrong. We would submit that that is offensive
to the rule of law, that we cannot have a nation,
which is democratic, unless the rule of law

prevails right to the top.
It may be that in the course of that great

inconvenience may occur. It may be that there are
a multiplicity of cases. It may be that it is seen
to be a burden on justices, justices that were
seen, no doubt, in other courts such as the
Family Court, in one of the cases that Your Honours have considered, to be a burden, and so they gave
the power to the Registrar.
But such matters are irrelevant, with great respect, to the exercise of judicial power as such,
and the power to make exceptions, we say, has to be
seen in the light of those propositions; that is
to say that the individual fundamentally has a
right to come to the court, that the court is the

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bastion of the rule of law and that fundamental to
the rule of law is that the citizen's rights and
obligations will be ultimately determined by this
Court.
If there are exceptions, then those are exceptions which will be detailed in the light of
whether the cases are minor cases in accordance
with views that had long been laid down that to
some extent it was appropriate to exclude from
appellate jurisdiction as of right cases that fell
within certain categories.
There are other ways of the Court dealing with

the problem of workload. This is not a public
inquiry into that matter, but there are other ways
of dealing with it. They are not matters, when one
goes to the second reading speech in relation to
the Judiciary Amendment Act (1984), that the
Attorney-General of the day apparently looked into,

or considered. The Parliament, in its wisdom,
decided that the problem was too hard and said,
"Oh well, let's give it to the Court".
Neither at a parliamentary level - and really

it is Parliament we are attacking here, not the
Court and may I make that quite clear - that is not
a satisfactory solution to whatever problem lies in
the multiplicity of cases that might come before this Court. There are other ways and those ways
are matters for legislators and judicial
administrators to consider, but one thing that was
fundamental to our Constitution, we submit, was
that those who wanted to come, could come. There
was no philosophy about one right of appeal being
enough; there were always two rights of appeal
prior to 1900. No philosophy that somehow the
ultimate wisdom could be resolved in the Court of

Appeal of the State. What they saw at the time and
whether we agree with it or not was that the
Privy Council represented the final resort for

there, and that right was going to be taken away to them. That was their protection; their right to go

some extent if matters went to this Court and there was a great debate about that, but what replaced it
was the right to come to this Court.

Now it is perhaps ironic that today the individual litigant stands in relation to this
Court as the litigant stood in relation to the
Privy Council at the time that the Constitution
came into force. In other words, you can say, "Oh
well, it was the grace and favour of the sovereign
in relation to the Privy Council, but now it is the
grace and favour of this illustrious tribunal."
And when I say, "grace and favour" I do not mean
something derogatory. It is not something which

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the ordinary litigant necessarily comprehends as

being an act of justice or in a justice system. A
litigant can go away from this Court on a special
leave application feeling that injustice has been
done for the reasons I have already expressed and
these were, we would submit, matters that were
fundamental to the thinking of the founders of our
Constitution and that is the reason why section 73
is cast in the way in which it is.
It is not as if the question of special leave,

or leave, was not in the minds of those who drew
the Constitution. It clearly was, because the

distinction between section 73 and section 74 are
quite abundantly clear, and the arguments that went
on at the time are abundantly clear. Special leave
is found, as words, in section 74. There is no

mention of it in section 73. Why? Because section
73, fundamentally, was talking about a right of
appeal.
And one thing that happened which was very

significant, was this: that one person, a
Mr Glynn, was very concerned that the Parliament
might take away the right of litigants to go to the

new Court of Appeal, the High Court. And those
words, "with such exceptions" et cetera, were the
subject of resolutions during the Convention

Debates. And finally, although those attempts to
get rid of those words by Mr Glynn and Mr Barton
did not succeed and were negatived, and the
participants in the debate said, "We'll leave it as
it is because we've got to trust Parliament, but it
is only there to get rid of minor cases", but
ultimately, because they were protecting the rights
of the States, the rights of citizens of the
States, they insisted that the second paragraph go

in and that was successful. And that was to
protect the right of appeal.
Now, a clever lawyer might say, "Well, there's

nothing in those words that talk about a right of
appeal", but it is unthinkable that a jurisdiction
to hear and determine appeals should in some way be
refused to a litigant who wants to appeal against
such a matter.
In other words, the vesting of jurisdiction in

the High Court carried with it an obligation to hear the litigant; the litigant had a right of
appeal in relation to appeals and when the section
talks about jurisdiction there is a concomitant
right of appeal. That is fundamental to the
Constitution, we submit. It is also, if I may say
so, fundamental to our argument because once one
just seeks to gloss over the provisions of
section 73 and says, "Well, we've still got

Smith Kline(3)

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jurisdiction", as many of the submissions do, "The
High Court has still got jurisdiction to hear and determine; we have not taken it away." We would
submit that that is rubbish; that is wrong; that
is fundamentally contrary to what was intended in
1900.
If the role of this Court is to be changed,

therefore, it has to be changed by the people. But
what person in Australia, fully informed, is going
to say, "Yes, I will give up my right of appeal to

go to the ultimate court in my country". It is

just unthinkable but yet that is what happened. It
happened overnight and now that right is in the

grace and favour of this Court. And we would
submit, with very great respect, that that was
never intended.
Can I take Your Honours to section 73 of the

Constitution? When it says "with such exceptions",
in our submission, that clearly means with such
exceptions from the jurisdiction of the Court.
Under the old provisions that provided that there
should be a right to appeal involving matters of
300 pounds and upwards, under those old provisions
the exception of other matters, that is by special
leave or leave, came under the phrase "with such
exceptions". That is also fundamental to our
argument.
Special leave, we submit, is not a regulation

power; it is not under the phrase "subject to such
regulation". Special leave is simply this:
Parliament has said cases below say 300 pounds, as
it was in 1903, can only come to the High Court by
leave or special leave depending on - I will not
trouble about the distinctions at the moment.
But having said that cases under 300 pounds

shall not come to the High Court - in other words,
having made the exception - Parliament clearly had

the power to alleviate that exception to say,

"Well, we will not turn you away completely. If
the Court thinks the matter is of sufficient
importance or your case has some substance to it,
well, we will leave it to the discretion of the
Court." But that is part of the exception power.

It is exception subject to an alleviation. The
words fit in in that sense, "with such exceptions".
Then it says "and subject to such regulations".
Now, that is the jurisdiction is subject to such
regulations.
Now, if the view were that all this was doing

was saying, "This great Court has jurisdiction to
hear and determine appeals and no more", then maybe
one could give those words some meaning that

Smith Kline(3)

29/8/91

justified the use of special leave provisions.
That idea is far removed from section 73 because
section 73 is clearly talking about a right of
appeal, and when it is talking about subject to
such regulations it is, in our submission, giving
Parliament a power to enable the regulation of the
system of appeals, that is, appeals which are
appeals. And, of course, there is no appeal, as
Your Honours have said, there is no appeal until
special leave is granted, and appeals that are subject to regulation are appeals as of right. Once the Court exercises its leave or special leave
jurisdiction under the old system, the person has a
right of appeal, but up till that point it is

within grace and favour. So that the words,
"subject to such regulations", we submit, are words
which govern the system of appeals, that is, those
which are truly appeals because they are appeals as
of right.
Then its jurisdiction -
to hear and determine appeals from all
judgments -

et cetera, and then (i), (ii) and (iii).
Now, as Your Honours will be familiar, in the cases of Collins v Marshall and Cockle v Isaksen,
which I think Your Honour the Chief Justice would
remember as bread and butter decisions for
Solicitors-General trying to determine what a
"matter" was; they are complex judgments, but they
always had to be, from the Commonwealth point of
view, a matter of consideration. But in those two
cases they speak of there being general rules and
that you cannot have an exception which destroys
the general rule.
Now there are a number of general rules here.

The general rule is that there can be an appeal
from all judgments:

Of any Justice or Justices exercising the
original jurisdiction of the High Court.
So that you could not have an exception which

prevented all judgments "Of Justices", et cetera,
being subject to appeal to this Court, and so on
with all the other provisions - "any other federal
court" - you could not except all judgments,
et cetera, of another federal court: you could not
except all judgments of the old Conciliation and

Arbitration Court. You could not except, we would
submit, all judgments of the Federal Court, and
likewise, and the same with -

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29/8/91Q

"court exercising federal jurisdiction ..... the Supreme Court of any State, or any other court of any State from which the establishment of
the Commonwealth an appeal lies to the Queen
in Council.

And then:

Of the Inter-State Commission -

So that there are a series of general rules from
which there can be no complete exception.
Now another aspect of section 73, in our

respectful submission, is that you cannot use it to
such an extent that it undermines the true nature

of what the Constitution gives. The Parliament
could not except to such an extent that it left the
Court a mere shadow of its intended self, because
the power to except is not a power to destroy, it
is a power to simply ensure that those who have
rights of appeal will be in cases which are of
sufficient value, or to put it another way, which

are not mere, minor or trumpery cases. But there
comes a time, and we do not have to point it out in
this case, when an exception or exceptions amount

to destruction. In some case there could be an
argument as to whether the Parliament had gone so
far that it had, by exception, destroyed.
We say, of course, that here, under

sections 33 and 35 of the several Acts that we are
attacking, that the Parliament has destroyed, quite
clearly - it has said "excepted, subject to such
exceptions and regulations", but they are not
exceptions or regulations at all; they are complete
annihilation of rights of appeal. And it is not to
the point to say that after a special leave
application the Court's jurisdiction to hear and
determine appeals will spring back into being,
because until the Court exercises a discretion in

there can be no jurisdiction to hear and determine. favour of a litigant, there can be no appeal, and So the special leave precedes the

jurisdiction. And it is not to the point to speak
about the jurisdiction to hear and determine still
existing at a time when Parliament has said, "You
cannot go to the Court, you cannot have an appeal

as of right. The Court has no authority to hear
and determine until special leave is granted".
Now, another aspect of section 73 which is

obviously important is "shall be final and
conclusive". That phrase obviously was put there
as part of the debate between those who were
contending for Privy Council authority and

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High Court authority. And it asserts the finality

and conclusiveness of this Court's judgments. But
it also says that this Court is the final court.
This is where the rule of law will be established; this is where the individual shall have the right
to have his rights or her rights or obligations
determined.
Those words are not just words that lawyers

read; they are fundamental to our Constitution and
of the constitution of this Court and they say
something about the rule of law. This Court is not
above the rule of law; this Court is not the rule
of law; the rule of law is the Constitution and
what the Constitution commands and what it permits
and if the Court is placed, as we would submit, in
the position that it is in the moment, it is placed
above the rule of law and the reason is that the
citizen cannot say, "I have the right to go to you,
with such minor exceptions, and have you determine
finally and conclusively my rights and
obligations." Well, if that is a fundamental of a
democratic society, well it rests in this Court and
we all believe, I thought, one might submit, that
it was.
Now, then it goes on:
But no exception or regulation prescribed

by the Parliament shall prevent the High Court
from hearing and 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.

Your Honours, it is very odd to me - but perhaps
that does not matter - that none of these States
are here to support our argument. I do not know whether they have not read the debates; I do not

know and it perhaps is irrelevant to that. And

those who would want to support the existing system
would no doubt get some good feeling out of that.
But if they do, then I might suggest that they have
failed to understand what this second full
paragraph is about, because it was designed to
preserve the right of the citizen to go to the
High Court. There can be no question about that.
It was there for that very purpose and it was the ultimate compromise so far as the supreme courts of the States were concerned, but yet no Solicitor-

General comes apparently to support it. Anyhow, I
would like to later make some submissions, but
based on what happened in the Convention Debates
about that provision.

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Our fundamental submission is that - and this

applies particularly to section 35 of the Judiciary Act - this provisions is talking about an appeal as

of right. When it says:
from hearing and determining any appeal from
the Supreme Court of a State -

it is talking about an appeal as of right -

in any matter in which at the establishment of
the Commonwealth an appeal lies from such
Supreme Court -

an appeal as of right lies from such supreme court- to the Queen in Council.

BRENNAN J: Well, now, if that is the proposition, what was

the intention with regard to criminal matters?

MR ELLICOTT:

In regard to criminal matters, then the third

paragraph picked them up and it left to Parliament
a prescription in relation to criminal matters

which would be by way of exception. Now, there was
no appeal as of right, it is true, in relation to
criminal matters, as at the establishment of the
Commonwealth to the Privy Council. But that was
the judgment that they took and that may, in our
time, be a matter of regret and always there will
be justices and lawyers who will take the view that
criminal matters should be more important than
civil matters.
So far as the words of the Constitution are

concerned we would submit that, in its context,
historical and in the Constitution, that paragraph
is talking about an appeal as of right. Really, in
the long run, as I have already submitted, there
can be no appeal except an appeal as of right.

That is what it is. Even if it is after leave it

is an appeal as of right.
There is a permissible argument which does not
cut across our argument, really, and that is that
it can cover appeal as of right but yet in those
circumstances where leave or special leave is
granted because it then becomes an appeal as of

right. So that that second paragraph simply
operates to give appeals as of right or to protect
them in such circumstances as people would have

them under the Privy Council regime. So that they
got them in relation to 500 pounds sterling or
upwards; so that they got them if, after
consideration, leave or special leave was granted,
depending upon what provision of the Order in
Council was relied upon.

Smith Kline(3)

29/8/91

Now, that is not offensive to our argument and what the third paragraph simply does is to pick up
those provisions of the Order in Council in 1900
and make them the low water mark. That is to say
that Parliament could not contract the right of
appeal any further than those provisions did at
that time.

DAWSON J:

What about the words "until Parliament otherwise provides"?

MR ELLICOTT: "Until Parliament otherwise provides" is

simply referring to the fact that Parliament can
make exceptions and those exceptions may be, as
indeed the Judiciary Act (1903) did, those
exceptions may be within the limit but not beyond
the limit that was laid down in the Order

in Council. What they were concerned to do was to
impress on the appellate system the Privy Council
provisions so they come in under the Constitution, but on the view that 500 pounds sterling could not
be increased to 800 pounds sterling, but it could
be reduced to 300, et cetera. And criminal appeals
could be made subject to right as distinct to leave
so that they were not wanting to place Parliament
in a strait-jacket on that matter but so far as
appeals from the supreme courts of the States were
concerned those were fundamental provisions and
that was a guarantee.
If ever there was an individual right in this

Constitution - from time to time people say we do

not have a Bill of Rights; we do - it is right
through this Constitution, if people care to look
at it. The trouble is we sometimes glide over them but here is a bill of right, it is a right, a right
of appeal to this Court, and some may think it is
the most precious right that they have got under
the rule of law.
The other view of that would be that when it

says:
an appeal lies -
the emphasis is on the words -
in any matter.

So that if there can be an appeal as of right in
any matter then that will satisfy the clause. That
is more a non-historical attempt at construction
because one has to say that so vehement were the
founding fathers about that second paragraph that
they meant what that really says, and that is if
you have 500 pounds sterling or upwards you can go
to the High Court as of right and nobody is to take

Smith Kline(3)

29/8/91

it away. What better words to express that than to
say:
But no exception or regulation prescribed by

the Parliament shall prevent the High Court -
Why do they put those words there?

DEANE J:

Can you adjust the 500 pounds sterling for

inflation?

MR ELLICOTT:	Your Honour, we thought about that - - -
DEANE J:	Or has it all gone now?

MR ELLICOTT: It is worth now, according to - if I can say

this, it is not evidence, but the calculation we
were given was that 500 pounds sterling was now
worth $46,000. That is just about right because I
think the Chief Justice of the High Court received

about 3000 pounds in 1903; I think it was around

about that. And one might think that it ought to
be multiplied by the same amount today but
unfortunately one would say the legislature has
fallen behind.

MASON CJ:

I hope this is not an accurate touchstone for the

rest of your argument.

MR ELLICOTT:

No, Your Honour, I was only giving some solace

and support to the view that the salaries of
Justices are not as high as they ought to be,
compared with the appreciation that the original an issue I do not want to get into but so far as
the 500 pounds sterling is concerned it would
amount to approximately - according to our
information, from that august body, I think the
Commonwealth Bank - $46,000.

DEANE J: But, on our your argument, do you keep adjusting

even though there is no pounds sterling?

MR ELLICOTT: There is room for an argument that you can

adjust for inflation but it is not an essential
part of the argument. The fundamental approach
that the founding fathers took was to say, "That's
it", I suppose they had heard about inflation but
so far as they were concerned this Court was a
court to which you could come as of right and 500

pounds was just about it. So what did they do,
they fixed it at 300.

DEANE J: But, on your argument, could you adjust for

inflation? I mean because the 500 sterling stayed
the Privy Council amount all the time.

Smith Kline(3)

29/8/91

MR ELLICOTT:

Your Honour, it does no offence to our argument, we submit, to say that that 500 pounds

sterling can be expressed in dollars of the day or

pounds of the day.

It does not do any offence to

our argument.

DEANE J:

Even though in 1960 it remained 500 pounds

sterling for the Privy Council?

MR ELLICOTT:

Yes, even though it remained because what it

did was to crystallize it as at 1900.

BRENNAN J: Are you speaking about the Order in Council

applicable to appeals from the Supreme Court of New
South Wales?

MR ELLICOTT: Yes, Your Honour.

I know that in other places

it was 1000 pounds; Tasmania, I think.

BRENNAN J:

How then does section 73 operate on your

construction with respect to appeals from different
supreme courts?

MR ELLICOTT: It simply operates in relation to the

particular court. It picks up Tasmania, 1000
pounds; it picks up New South Wales, 500 pounds.
Now, that may be inconvenient, in a sense, but that
is what they intended. "Why should Tasmanians have
a lesser right to appeal to this Court than the

Privy Council?", they said to themselves. And if

it was 1000 pounds, so be it. It was not doing any
more than putting into the Constitution a
solidification of the rights of appeal of the
citizens of the particular States. And if Tasmania came into it on that basis, well, that is so be it.
And if that is the situation now, so be it.

It may be that it is inconvenient. It may be

that it is not fair in our terms today that there
be a different right of appeal from Tasmania than
there is from New South Wales and other States but

that was the deal. It is compact and they

understood that and they did it. So it does not,
with respect, Mr Justice Brennan, affect our
argument in that sense; it picks it up and, we
would submit, they intended to pick it up.

McHUGH J: Well,

how absolute is this right given by the

second paragraph? Can Parliament say that an
appeal must be filed within 14 days or otherwise
you lose your right of appeal under the second
paragraph?

MR ELLICOTT:

The appeals can be regulated: "subject to such

regulations".

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29/8/91

McHUGH J: Well, if Parliament can say that you cannot bring

an appeal unless you file a notice of appeal within
14 days, why can it not say that you cannot bring
an appeal unless you get special leave from the
Court?

MR ELLICOTT: Because the citizen has the right, and in the

ordinary context of - just as the Privy Council
had, I think it was 28 days, but whatever the
period was, that was understood that people who had

rights had to exercise them. But it is a right of
appeal within a judicial system, and the judicial
system always said, "Well, if you don't act, you
lose your right". There is nothing strange about
that, and that is exactly what this does.

DAWSON J: But on your argument a monetary limit would be

prohibited because that denies a right of appeal to
people below that limit.

MR ELLICOTT: Yes, but that is because

DAWSON J: But you say it is not prohibited.

MR ELLICOTT: That is because the level that was chosen was

the Privy Council test, because they were giving an
alternative right, and people below the limit would
have the same - as a result of the third paragraph they would have the same opportunities, I will not
call them rights, opportunities as people who
wanted to go to the Privy Council in those classes
of cases. They would have to apply for leave or
special leave.

DAWSON J: But those people are prohibited from appealing

because they do not come within the monetary limit.

MR ELLICOTT: Yes, and that - - -

DAWSON J:

And therefore the first paragraph is not

satisfied. Unless you view the fact that they

could get special leave to appeal as meaning that
they were not prevented from coming to the
High Court.

MR ELLICOTT: That does not prevent either interpretation

being placed upon the paragraph; either that it is
applying only to those situations where there is an
appeal as of right because the monetary sum is 500
pounds sterling or otherwise, or also includes
appeals as of right which follow upon the grant of leave or special leave. We do not find difficulty with either interpretation. In other words,
persons would, because the third paragraph ensured
it, we would say, as at 1900, be entitled to come
to this Court if they could get leave or special

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29/8/91

leave in the stated circumstances, if they were
under the 500 pounds sterling.

MASON CJ: Mr Ellicott, could I ask you this question: to

what extent is your argument consistent with
Parkin v James?

MR ELLICOTT:

We would submit, Your Honour, when one takes

into account subsequent decisions of the Court, it
is consistent with Parkin v James, and I will come
to that and deal with it.

MASON CJ:	But you will deal with Parkin v James.
MR ELLICOTT:	Oh yes. Your Honour need have no fear, I will

deal with Parkin v James, but I will deal with it
after I have dealt with Cockle v Isaksen,
Collins v Marshall and a few other cases, but we
would submit that Parkin v James was not intended
to be a conclusive decision about regulations or
about whether the word "appeal" meant appeal as of
right or appeal as of course or just appeal
because, in any event, we would submit it is
consistent with Parkin v James to treat the word
"appeal" as applying to situations where an appeal
is as of right under the Privy Council code or is
as of right in the sense that special leave or leave is granted and that there was no need to
distinguish between appeal as of right, appeal as
of course, et cetera, as is discussed in
Parkin v James, and that the words "an appeal lies
to the Privy Council", those words in section 73,
that they were more the subject of consideration of the Court in Parkin v James, than were the words to which the second paragraph of section 73 are

directed. So we submit at the end of the day - but
I hope it will be long before the end of the day -
that Parkin v James is not contrary to our
argument.
Your Honours, sections 35 and 33, they do, in

effect, in our submission, take away the

jurisdiction of the court. Section 35, just
leaving out the non-essential:
The jurisdiction of the High Court to hear and
determine appeals from -

et cetera, is -
subject to the exceptions or regulations
prescribed by this section.

Now, first of all, notice that it uses the word
"subject to". That is not the words of the
Constitution in relation to exceptions; it is with
exceptions. But when you go down:

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29/8/91

An appeal may not be brought from an
judgment ..... unless the High Court gives
special leave to appeal.

That takes it away altogether; it removes it
completely. It has no right, no jurisdiction to
hear and determine an appeal at all under that
provision. If it is an exception, it is an
exception of everything which is a destruction, and
it is clear that the section intends to be cast in
the context of the words:
with such exceptions and subject to such
regulation -

found in section 73. So Parliament is intending
apparently to treat the jurisdiction of the
High Court as being accepted from by the later provisions and when you see what is accepted from
it, it is everything, because it would not have any
jurisdiction unless special leave was granted.
Now, Your Honours, if that power can be given

to the High Court, we would submit it could be
given to any other body, and that is unthinkable;
it just is really unthinkable, we would submit, in
the context of our Constitution.
We know that in England it is not uncommon, in

fact it is common, for the Court of Appeal to give leave to appeal to the House of Lords and maybe it could be, in our system, appropriate to give the
Federal Court or the supreme courts of the States the authority to grant leave to appeal to the High
Court in certain cases. But that is part of a
judicial system where there are appeals in
Australia as of right. But where there are no
appeals as of right, and where special leave is the
discrimen, it is unthinkable that that total power
for people to come to this Court should be given to
anybody else, and we would submit that if - - -

DEANE J: But Mr Ellicott, it simply would not be comparable

in terms of whether a provision prevents the Court
from dealing with something to say that something
which says the Court shall not deal with it unless
someone else says it can is the same as something
that says the Court shall have power to grant

leave. I mean, there is just no comparison for the
purposes of the second paragraph.

MR ELLICOTT:

Your Honour, if one was talking about a

situation where there were rights of appeal and the
Court had the discretion to grant special leave in
relation to some matters, in other words, under the
old regime, if I can use that expression, then what
Your Honour says I would agree with.

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29/8/91

DEANE J:

But under any regime, if one comes to the

question, "Does a provision prevent the High Court from hearing and determining an appeal?", there is
simply no comparison between a provision that says
you have to get leave from the High Court and a
provision that says the High Court cannot deal with it unless you get leave from someone else. That is

the only matter I was raising with you. It seems
to me to -

MR ELLICOTT: Well, there you are certainly comparing

different bodies. I mean, let us take an example.
Supposing it is said no appeal to the High Court
except where special leave was granted by a law
reform commission, and it had the Chief Justice as
the head of it.

DEANE J: Take a more obvious case. Take a law that says

Mr Ellicott cannot talk to anybody without
Professor Zines' permission, and a law which says

Mr Ellicott will not talk to anyone without his own
permission. To say that the two are the same in
terms of whether a law prevents Mr Ellicott from
talking to somebody seems to me to, with respect,
border on the absurd.

MR ELLICOTT: Well, with very great respect, Your Honour,

only absurd because one cannot contemplate that
anybody would think of doing it, and the absurdity
is not so much in our submission, the absurdity is
in the thought that the legislature can commit to
somebody else, albeit the Court, the right to
decide whether or not persons shall be entitled to
have their cases heard and determined by this
Court. That is the absurdity. It is absurd
because it takes away the jurisdiction of this
Court to hear and determine, and that is something
that is so fundamental in our Constitution in
section 73 that it is absurd to think that
Parliament should use this device in order to
achieve that result.

Of course, if one takes a different view, then

it is not absurd, but once one concedes that there
is built into section 73 a right of appeal, then that is when the absurdity arises. However, the
word "absurdity" is not - - -

BRENNAN J: That is the very question, is it not? One

cannot really start by saying, "Section 73 builds
in a right of appeal.", when that is the very
problem that we are addressing.

McHUGH J:

Your argument - again and again you keep

referring to the right of appeal, but section 73

does not mention rights from beginning to end. A
right is what you have after the legislature has

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exercised its power in conjunction with section 73,
then you can determine what rights of appeal you
have got.

MR ELLICOTT: Well, with great respect, Your Honour, that

was not the situation until Parliament in relation,
for instance, to a court, say a federal court -
until Parliament passed some prescriptive law, then
the Constitution itself provided both the authority
and the jurisdiction to hear and determine appeals from that court, it did not need any more, and the
right of the person to expect the court to hear and
determine. It is just unthinkable to think that a
court should have an authority to hear and
determine an appeal, but yet, for some reason,
built into that very concept, it can say, "We will
not hear and determine it, we were set up for the
purpose, but we will not do it".
Now, there is no doubt, on its proper construction, and there is authority for this, that
section 73 operates without any parliamentary
prescription, and it does carry with it a right, so
that if it so operates, then what the Parliament is
doing is taking away a right, or confining it, and
doing so at the same time as it is taking away the
jurisdiction to hear and determine particular
appeals, and for that reason, we submit, that
although it does not talk about the right - you
cannot find the word in there - it is a correlative
or concomitant right of the individual to come to
this court without more under our
Constitution - - -

BRENNAN J:

Mr Ellicott, could I just ask for your

assistance in this? On your argument, why is it
that the Parliament can have any power to require
special leave in a criminal case on appeal from a

State supreme court? I mean, if one says the
criminal matter was a matter in which an appeal lay from the supreme court to the Queen in Council, for

the purposes of the second paragraph, on your
argument, as I understand it:
no exception ..... prescribed by the Parliament
shall prevent the High Court from hearing and
determining -

a criminal matter. So that if the Parliament says,
"We shall not hear and determine a criminal matter
except by special leave", it is ultra vires.

MR ELLICOTT:

The appeal to the Privy Council was subject to leave or special leave, in criminal matters.

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29/8/91

BRENNAN J: That is relevant only to the question of whether

a criminal matter is a matter for the purposes of
the second paragraph, is it not?

MR ELLICOTT: With respect, no. It says:

in any matter in which at the establishment of
the Commonwealth an appeal lies from such
Supreme Court to the Queen in Council.

BRENNAN J: Then, if we establish that a criminal matter is

such a matter?

MR ELLICOTT: Yes, but by leave or special leave.

BRENNAN J:	Then?
MR ELLICOTT: And it picks it up.	It is a matter in respect

of which a right of appeal arises after leave or
special leave, on that argument.

BRENNAN J:

I see.

MR ELLICOTT: And therefore, this - - -

BRENNAN J:

So it only becomes a matter once special leave

is granted.

MR ELLICOTT: Well, it only becomes an appeal. There is no

appeal until leave or special leave is granted.
You cannot have an appeal.

BRENNAN J: But that is not the word, is it? It is

"matter". That is the word.

MR ELLICOTT: Well, it says, "jurisdiction to hear and

determine any appeal in any matter". An appeal in
any matter. And when you read it with the third
paragraph, we would submit it is clear that what
they are intending to do is to say that the low
water mark, in effect, shall be the Orders in
Council, but Parliament may provide otherwise to

expand the right of appeal; it cannot contract it,

in relation to appeals. And that would include
criminal appeals.
So it is fundamental to our submissions, in relation to both section 33 and section 35, that
are attacked, that what is happening is an
exception, an attempted exception, but it is not an exception because it is destructive of the whole of the authority to hear and determine, and therefore
it is invalid. That applies right across the
board. It does not draw any distinctions between
criminal, non-criminal, civil, or whatever the
matters may be.

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29/8/91

Now, Your Honours, in the book that I think

has been handed up there are just a couple of
passages in the debates that I wanted to refer

Your Honours to. Under 4(H), Your Honours will
have the debates of 31 January 1898. This is the
first attempt by Mr Glynn to deal with these words
"with such exceptions" that were already in there.
He said, at page 331, after moving that the words
"with such exceptions and" be struck out:
This is a limitation of the power of appeal, a
limitation of the general vesting of the
appellate power under this clause, by
rendering it competent for Parliament to say
in what cases there shall be an appeal and in

what cases there shall not. As the clause
reads, the High Court shall have jurisdiction
"with such exceptions" as Parliament may
prescribe. It is in the power of Parliament
to say that even in some federal cases and
cases of state appeals the appellate
jurisdiction of the High Court shall not exist
- the High Court will only have jurisdiction
"with such exceptions and subject to such
regulations" as Parliament may from time to

time prescribe. Now this word "regulations"
must mean something different from
"exceptions". "Exceptions" means a deduction
from the powers of the court, and there must
be a significance given to the word
"exceptions", which is wider than the word
"regulations". Therefore, I think it will be
in the competence of Parliament -

DAWSON J:	Mr Ellicott, which page of the - - -
MR ELLICOTT: Page 331, it is under tab 4(H).	I am reading

the first column, about two-thirds of the way down:
Mr Glynn.

Therefore, I think it will be in the
of appeal, even from federal courts, may be
cut down, and also the right of appeal from

state courts. Now, that was never intended.
competence of Parliament to say that the right

And then he goes on, over the column, about a third of the way down:
We should be anxious not to put in words which
will render it competent for the Parliament to
state that in certain cases within the limits
of clause 73 appellate jurisdiction shall not

exist even in federal matters. They might
also, under this provision, declare that the
right of appeal upon state matters will exist

Smith Kline (3)

29/8/91

only in exceedingly few cases. There is not a
clause in the Bill which expressly gives
appellate jurisdiction except this clause. It
is given by implication in clause 77 ..... In my
opinion, the retention of the words "with such
exceptions and" would allow too great an
interference with the appellate jurisdiction.

Now, Mr Higgins says:

I hope the amendment will not be accepted. I
find that the words to which Mr Glynn takes
exception are the words used in the United

States Constitution .....
If they were willing in the United States to
allow exceptions even with regard to appeals
in federal matters, then a fortiori I think
the Federal parliament ought to be allowed to
make exceptions in connexion with the High
Court, which is to deal with appeal in matters
of all sorts and from all courts, otherwise a
man might protract litigation ad infinitum on
the most trumpery case. For instance, if
there was an order made by a Judge as to the
form of pleading - that a man must make a
statement of claim more definite - then,
according to my honorable friend's amendment,
an appeal about a statement of claim or
declaration could be carried up to the High
Court of Australia, and the High Court would have its time taken up with the wretched
question as to whether a certain word should
be put into a statement of claim.
MR O'CONNOR. - Or about some matter involving
only a matter of 40s.
MR HIGGINS. - Yes. Supposing a man was
convicted of being drunk and disorderly, and
was fined or ordered to be imprisoned for a

might carry the thing to the High Court, and certain number of hours; if he were rich he the time of the High Court might be taken up
by such a trumpery matter as that. In this,
as in other matters, we must trust the Federal

parliament to a very large extent. I think
the whole machinery of the Act will become
ridiculous if the people are to be told that,
no matter how trumpery a case may be, the
litigant shall have power to oppress the other
side by carrying it to the High Court of
Australia.
The amendment was negatived.

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29/8/91

Those were fairly strong words and they carried the
day but the thought behind it is quite clear that
the words are not there to destroy the authority to
hear and determine; the words are there to limit,
as they were used until 1984, the class of cases
and to draw a distinction between those that might be thought to be minor and those that are not, and
allow leave -

BRENNAN J:	It was not so used in relation to criminal matters until 1984.
MR ELLICOTT:	No, Your Honour.
BRENNAN J:	And that is at the heart, surely, of the rule of

law.

MR ELLICOTT:

They were always the subject of leave or

special leave. There is nothing strange about
that, Your Honour, historically.

BRENNAN J: That is not historically but if your argument be

that the whole function of this Court is to ensure
that the rule of law be applied by admitting
appeals in every case, one could not think of a
category of cases more designed to ensure the
operation of the rule of law throughout the length
and breadth of this land than criminal cases.

MR ELLICOTT:

Now they came by leave.

Leave enabled the

Court to look at the matter and say, ttNow, has this person been dealt with unjustly?tt. Special leave, as far as one can tell, is not dealt with on that
basis. That enabled the Court to say, ttYes,
criminal matters, we are not going to allow it as
of right", but it allowed the Court, be it the
Supreme Court of New South Wales in relation to the
Privy Council, or this Court until 1976, to deal with the matter of criminal appeals on the basis of leave.

That, historically, was not, we would submit,

offensive to the rule of law. What becomes
offensive to the rule of law, and maybe it crept in
in 1976, and should not have crept in, that what
was offensive to the rule of law was perhaps that
criminal cases should be the subject of special

leave, and not leave. No doubt this Court, in the
administration of special leave in relation to
criminal matters, has taken a broader view than it
might otherwise have taken because there is no
longer the leave provision. Historically it is not
strange, but to us living in this day and age some
of us may feel that that is much more important, a
person's liberty, than $20,000 or $60,000.

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Under tab 4(J) we find that Mr Barton thought

that he would have a go. At page 1885, the second
column, Mr Barton says:
I beg to move -
That the words "with such exceptions and
subject to such regulations" (lines 2 and
3) be omitted, with the view to the
insertion of the words "subject to such
conditions".

My honourable friend (Sir Joseph Abbott)
seemed to entertain the idea that the passing
of this slight amendment might affect his
right to propose an amendment .....
Honourable members will see that this

provision gives the High Court jurisdiction to
hear and determine appeals, "with such
exceptions .....
The difficulty about the clause as it stands is this: That it allows the Parliament to
legislate in reference to the jurisdiction of the High Court in regard to appeals in such a
way that, little by little, the High Court may
become the mere shadow of a Court of Appeal.
That position arises because we have placed in
a parenthetical part of the clause words which
appear to be too strong. For these words I
therefore propose to substitute the words
mentioned in the amendment. The Parliament
will still be able to prescribe regulations
for the hearing of these appeals, but it will be unable to take away the appellate power of the court.
Mr Higgins - Does that mean that a man will be
able to appeal even in a case concerning only
ten shillings?

Mr BARTON - I do not think so. The right of
appeal relates to the question of law or fact
that is decided. The Parliament might impose
conditions of appeal, just as Orders in
Council impose conditions of appeal, which
would limit the right of appeal so as to
exclude minor or trumpery cases.
So that it is clear that it is thinking about

cutting down the right of appeal which this section
was intended to give.
Mr Higgins - I understood that the object was
to enable some common sense to be exercised in
determining what appeals should be allowed.

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29/8/91

If the amount involved was not beyond a
certain sum, there ought to be no appeal.
Mr BARTON - It was exactly what the honourable
member describes, and that is the object of
this amendment. The question is: Which is
the better way of saying the thing? We are
afraid that if we say "with such exceptions
and subject to such regulations," it will be
in the power of Parliament by successive
regulations to cut down the right of appeal.
Mr Isaacs - Does not the honourable member
think that if there is no power to make
exceptions, every man might appeal, even in
connexion with the criminal matters?
Mr BARTON - I do not think so, but it is
difficult to find suitable words.
Mr Symon - Would it not be better to adhere to
the words we have got?
Mr BARTON - There is a reference to the
subject to which Mr Glynn called my attention
in Mr Burgess' well-known book -

that is in relation to the United States -

If the present provisions of the Bill are
retained in relation to appeals to the Privy
Council, and appeals can only be taken from
the High Court or from the court of a state
when the cases come within certain limits, and
if in addition to that the Parliament is given
the right to take away appeals, then the right
might be limited not only on the side of the
Privy Council, but also on the side of the

High Court. The state court would really be
the final court of appeal. What I object to is the retention of words which would enable

Parliament so to cut down the jurisdiction of
the High Court -

Mr Isaacs then comes in. He says:
When the clause was discussed before, an
honourable member distinctly asked whether it

related to appeals in criminal matters. I
think it was asserted that, as the words now
sought to be excised were in the clause, it
would be within the competence of the Federal
Parliament to prevent appeals in criminal

cases. The clause, as it stands, provides
that the High Court shall have jurisdiction,
subject only to any exceptions Parliament may
impose, to hear appeals from any Federal Court

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29/8/91

or from the Supreme Court of any state on
judgments -

et cetera -

Sentences would include criminal matters. I
would point out, also, that if the state the Supreme Court of the state shall be final
and conclusive, and without appeal, in any
particular state matter, yet under the terms
of this clause the provisions of that state
legislation would be nugatory in that respect,
and they would have a right of appeal under
the Constitution. Surely we do not intend to

do that. But let us carry the matter a little
further. Let us take the case of a man who
has been fined in a police court for an
assault ..... Under this clause he could carry
the case to the Federal High Court,
notwithstanding any negative provision in the

state legislation. We are not trusting the

Federal Parliament. We are really taking it
out of their power to prevent an abuse of the

judicial machinery. I think that is going too
far.
Then that debate continues and finally that

was negatived on page 1893. However, I do not
think I should take the time of the Court in
reading all of that but I have read enough to give
Your Honours the flavour of it; the flavour being
that what Sir Edmund Barton was concerned about was
cutting down the right of appeal to the point where
this Court became a mere shadow of the Court of
Appeal by the use of the word "exceptions". But what was not in doubt was that the excepting power
was there only to deal with minor cases and to
allow common sense to be brought to bear on the
subject.

Now, with very great respect, to make the

Court's jurisdiction dependent on special leave is not, with very great respect, to appeal to the common sense of the situation. It is not the
common sense of the situation because the
subject-matter under consideration is whether or
not there will be a right of appeal. There is no
doubt that, in their minds, there ought to be
retained a right of appeal.
Under the tab 4(K) we find the last attempt to deal with this matter and it resulted in the second
full paragraph going in. At page 2323, Mr Glynn
said:
I beg to move -

Smith Kline(3)

29/8/91

That the following words be added to
clause 74:- "Provided that nothing in this
section shall be construed to prevent the High
Court from hearing and determining appeals
allowed by the law of a state from the Supreme
Court of the state."

This was adopted but it went into the drafting in

order to tidy it up. Having referred to clause 74,
he said, at the top of the second column - 2323:

The position is this: We have authorized the
Federal Parliament to interfere with the right of appeal from purely state legislation. Now, I say that this is an uncalled-for

interference with the autonomy of the states.
I resisted this provision before, both in
regard to federal legislation and state
legislation, urging on the Convention that
what ought to be done was to leave the
jurisdiction of the High Court perfectly and
fully comprehensive of everything, but to let
the question of whether appeals should lie or
not to rest in the one case with the Federal
Parliament, and in the other case with the
state Parliaments. That is the ordinary law

of the land at the present time. If you wish
to take away the right of appeal in a
particular matter at present you do not
provide that the court is not to hear the
appeal, but simply deny the right of appeal as
a matter of legislation. What I ask the
Convention to do is to say that the Federal
Parliament is not to have power to take away the right of appeal on purely state matters.
As the Bill now stands we have taken away,
notwithstanding the last division, the right
of direct appeal to the Privy Council, and we
have put it in the power of the Federal
Parliament to say that there may not be an
indirect appeal to the Privy Council in state

matters because, if the Federal Parliament
passes an Act to say there shall be no appeal
to the High Court in regard to a purely state

matter, then there may not be an appeal to the have placed the right of appeal in the hands of the Federal Parliament, taking away the
existing right -

et cetera. Then:
Mr. BARTON (New South Wales) - In the

form in which this proviso is moved I would
like to ask my honorable friend, does it mean
that a state may, at any time, pass a law

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29/8/91

allowing an appeal from the courts of that
state to the High Court?
Mr. GLYNN - No, it is the other way

about - that the Federal Parliament cannot cut
down that right of appeal.
Mr. BARTON - That is the intention of the

honourable member; but what I am a little
troubled about is that his amendment reads as
a proviso which would secure that the High
Court shall not be prevented from hearing and determining any appeals the state may allow to be brought before the Supreme Court of that
state. In this form it might carry out an
intention which the honorable member himself has not. I do not think he wishes to give a continuing power to the states themselves at all to determine the classes of appeals which
the High Court shall entertain from the
Supreme Court of that state; otherwise that
would be giving the state jurisdiction over
the High Court, and the High Court is intended
to be subject to the jurisdiction, as far as
legislation is concerned, which is given to
the Commonwealth -

Now -
Mr. GLYNN - I do not mean that.
Mr. BARTON - If we are quite clear what

Mr Glynn means, then, if this proviso is
carried, the Drafting Committee can look after
the matter. What my honorable friend wants, I
take it, is this: That the words "with such
exceptions ..... " shall not extend to giving
the Parliament power to cut down the appeal
from the Supreme Court of the state to the
Federal High Court.

MR BARTON -Then I can follow that very well. There is perhaps yet another difficulty. If
the honorable member wishes to carry out
entirely the meaning of this amendment it
might be wise to make it read ... Nothing in
this sub-section "or in any law passed
thereunder" shall be construed to prevent the
High Court.
MR GLYNN - I have no objection to that
amendment.
MR BARTON - What my honorable friend wants to
prevent is the effect of any law cutting down
this appeal to the High Court from the Supreme
court of the State.

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29/8/91

MR GLYNN - That is so.
MR BARTON - Then the Drafting Committee will
perfectly understand what my honorable friend
means.
MR GLYNN - I understand that Mr Symon wishes
to insert something before my amendment.
MR BARTON - My honorable friend Mr O'Connor
has mentioned to me this matter: Mr Glynn has
said that he does not mean to confer power
upon a state to make laws to provide for
appeals from its own court to the High Court, but what he does want is to put it out of the power of the Commonwealth Parliament to
regulate appeals so as to prevent any existing right of appeal from a local court to the High
Court. Does he mean that to include the right
of appeal as conferred by the Constitution or
as existing at the date of the establishment
of the Commonwealth?
MR GLYNN - As existing at the date of the
establishment of the Commonwealth.
MR BARTON - Then I understand that perfectly.

And that amendment was agreed to towards the bottom
of page 2325, first column, and there is no
question that what the delegates there had in mind
was that, in putting in that provision, the right
of appeal was not going to be cut down and that is
fundamental to an understanding of that paragraph.
When later the Judiciary Act came up for debate, and this appears under tab 7(C), there are
some relevant remarks by Messrs Deakin, Higgins and
Isaacs. At page 1143, it is the second page in
under tab 7(C), Mr Glynn, - I am sorry, it starts
on page 1142 - the second column on page 1142.

They are all in the Federal Parliament now:

MR GLYNN - I am not quite sure that this clause does not contain a provision that is
ulta vires of our powers.
This is talking about clause 36, which is set out
at the foot of the previous page and at the top of
the first column on page 1142 -
In section 73 of the Constitution there is a provision that the High Court shall have
jurisdiction, "with such exceptions -

et cetera.

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29/8/91

It also provides ..... In other words, while the
Parliament may prescribe regulations and
exceptions regarding any appellate
jurisdiction that it confers upon the High
Court, it has no power in relation to appeals
which, at the establishment of the
Commonwealth, lay from the Supreme Courts to

the Privy Council. The honorable gentleman
proposes to insert a provision which declares
that there shall be no appeal where the amount
involved is not more than 300 pounds.
MR L.E. GROOM - Is not a limitation of 500
pounds imposed by the various States in regard
to appeals to the Privy Council.
MR GLYNN - I cannot recall the conditions
which obtain in all the States, but I know

that they are not similar. My point, however,
is that we cannot prescribe any limitation.
It is for the States to do that. In effect this clause declares that there shall be no
appeal to the High Court in cases in which the
amount involved is less than 300 pounds.
MR L.E. GROOM - It is fixed by an Order in
Council.
MR GLYNN - Yes and with an Order in Council we
have nothing to do. If there is a
prescription in an Order in Council which is
applicable to a particular State, that is the
State law, with which we cannot interfere.
MR DEAKIN - Why not?
MR GLYNN - Because we have no power to do so.
We are asked to insert a provision which
amounts to a limitation, although it is

affirmatively expressed. Does not the

affirmation of any proposition include the

negation of its opposite? We have no right to
insert any such limitation in this clause.
MR DEAKIN - The point raised by the honorable
and learned member for South Australia is one

of interest. As the author of this particular
clause, I am impressed with any reading which
he may have to offer, but to me its words seem
to impose only one restriction upon this
Parliament - a restriction against the
insertion of any restriction.

And that is a very important sentence.
We do not impose any restriction, but we find
that one has been imposed under an Order in

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Council. That restriction is that the amount
involved must not be less than 500 pounds.

That is the third paragraph.
We do not propose to increase that restriction

but to decrease it. As I understand the
Constitution, we cannot increase the
restriction imposed so as to make it more
difficult to appeal from the Supreme Court of a State to the High Court than it was, at the
time of the passing of this Bill, to appeal
from the Supreme Court of a State to the Queen

in Council. As long as we remove
restrictions, instead of imposing them, it
seems to me that we are acting within the
powers conferred by section 73 of the
Constitution.
Now, Your Honours, we would say that

section 35 just could not stand with that
reasoning. It does not fit in because it is moving
above the low water mark in any event, but it is a
complete destruction of the right of appeal.
MR HIGGINS - I understand that clause 35 which
has been passed relates merely to appeals from
Justices of the High Court, and from the
Supreme Courts as courts of first instance.
But I apprehend that the clause under
discussion is meant to apply to appeals in
matters of Federal jurisdiction or otherwise?
Mr Deakin - Yes.
MR HIGGINS - Then the object of this clause is to define the limitations of the power of
appeal - whether in Federal matters or
not ..... May I therefore ask the
Attorney-General if he has considered whether
this provision confers upon the High Court a

clear right to hear appeals from the Full
Court of a State? It declares - It was
certainly the intention of the framers of the
Constitution to give the High Court the right
to hear ordinary appeals from the Full Court.
In our ordinary practice judge of the Supreme
Court first decides any case which comes

before him. Then if a litigant is
dissatisfied he appeals to the Full Court. If
defeated there he can, at present, appeal to

the Privy Council. The intention of the
framers of the Constitution was to give the
High Court the right to deal with those cases
which would otherwise have gone to the Privy
Council.

Smith Kline(3)

29/8/91

That is an important comment.
I apprehend that the Attorney-General has no
idea of robbing the Full Court of its right to

deal with appeals in the first instance; and
I merely wish him to consider whether under
this clause he has secured to the High Court a
right to deal with appeals from the Full
Courts .....
Mr Deakin - It may mean one or more.
MR HIGGINS - In framing section 73 of the
Constitution the Judiciary Committee intended
to cover, by the general words which are there
used, an appeal not merely from a Judge in the
first instance, but from the Full Court.
MR ISAACS - I think that the point which has
been raised by the enumerable and learned
member for Northern Melbourne is a very
important one, but it is not within our power
to take away from the Supreme Courts, however
they may be constituted, the right of appeal

to the High Court. Amongst the appellate
powers conferred upon the High Court by
sub-section (2) of section 73 of the
Constitution is the power to hear appeals from

the Supreme Court of any State. It does not
matter whether the Court is composed of one
Judge only, or two or three Judges; it is the
judgment of the Supreme Court. There may be
internal arrangements, according to the State
laws, as to how the Supreme Court jurisdiction
shall be exercised. If a litigant obtains a
judgment from the Supreme Court of a State
irrespective of whether that tribunal consists
of one Judge or six Judges, it seems to me
that such judgment clearly comes within the
scope of section 73 of the Constitution.
Nothing we can do can derogate from that.

MR HIGGINS - But for the sake of clearness, I
think that when we speak of appeals from the
Supreme Court we ought to say "Full Courts".
MR ISAACS - Clause 36 does not purport to give
any appellate jurisdiction. It assumes that
appellate jurisdiction is conferred by the
Constitution. It then proceeds to exercise
restrictive powers, and to say that the
appellate jurisdiction of the High Court with
respect to the judgments of the Supreme
Courts ..... shall extend to certain judgments
and to no other. That is an exercise, not of
enabling powers, but of the restrictive powers
conferred by the Constitution. Therefore, it

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seems to me that the words "Supreme Court of a
State" must be interpreted to mean what they
undoubtedly mean in section 73 of the
Constitution.

Now, those passages and others would confirm the
view that what section 73 was directed at, and
particularly the paragraph in question in relation
to the supreme courts of the States was to ensure
that the right of appeal would not be taken away,
and to them the authority to hear and determine was
equivalent to the right of the litigant to appeal.
Your Honours, the decisions on this subject,

first of all dealing with exceptions, I wanted
first of all to take Your Honours to Hannah v
Dalgarno, which is the first case in the
Commonwealth Law Reports, 1 CLR 1.
And delivering the judgment of the court, Sir Samuel Griffith, at about two-thirds of the way
down page 9, said:
Section 73 provides that the High Court shall
have jurisdiction, "with such
exceptions ..... to hear and determine ..... Then
follow two paragraphs, the first of which
limits the power of the Parliament to
prescribe exceptions and regulations with
respect to appeals from the Supreme Courts of
the States, and provides in effect that the
appealable amount shall not be increased
beyond that fixed by the Orders in Council,
while the second provides that, as to such
appeals, the existing restrictions and
conditions shall continue until altered by the
Parliament within the ambit of its authority
as controlled by the previous paragraph.

Now, Your Honours, that is his first utterance
about this paragraph, and it is very telling, we

would submit.
These paragraphs, however, do not apply to
appeals from federal Courts or Courts
exercising federal jurisdiction, unless,
indeed, the Supreme Court of a State
exercising a new federal jurisdiction, which
it had not under the laws of its own State, is
to be considered nevertheless, for the
purposes of this section, as a Supreme Court
acting as such, and not as "a Court exercising
federal jurisdiction".
Just stopping there, we, of course, in relation to section 33 of the Federal Court of
Australia Act are not submitting that the second

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paragraph has any restriction there. It obviously
does not. It does bear on the meaning of the word
"exception", that second full paragraph, but it
would be possible to have different tests for the
Federal Court appeals to the State court appeals.
Our argument would have to concede that. But, of
course, particularly with cross-vesting, it is
unthinkable that if appeals are allowable as a
right within the limits that we have submitted,
that the Parliament would fix any other limits for
Federal Court appeals. There would not be any
rational or sensible basis for doing it.
He says:
A distinction is, however, plainly drawn by
the section itself between the two capacities
in which the Supreme Court may act ..... A
distinction between the several capacities in
which a Supreme Court may act is, no doubt,
unfamiliar. But such a distinction between
the several capacities in which a single Judge
or an inferior Court -

well, I do not think I need to trouble Your Honours
with that. At the foot:
The authority, therefore, if any, of this
Court to hear the case now before us is to be sought not in the Judiciary Act but in the Constitution itself, and sec. 35 of that Act is to be regarded, not as a provision for creating rights of appeal, but as a provision
making exceptions from the jurisdiction
conferred by the Constitution and prescribing
regulations as to its exercise.

That is, as to the exercise of the jurisdiction to

hear and determine appeals. And that is one
passage which is authority for the proposition I
submitted to Your Honour Mr Justice McHugh earlier.

Had then the High Court jurisdiction to
entertain appeals from judgments pronounced
before the passing ..... The Court, as the
embodiment of the judicial power ..... is an
essential part of the structure of the
Commonwealth. Sec. 73 of the Constitution has been in force force from the establishment of the Commonwealth, although the power of the
High Court could not, of course, be exercised
until the Court was actually constituted by
the Parliament. With regard to judgments
pronounced by the Supreme Court, in the
exercise of their State jurisdiction before
the passing of the Judiciary Act, the right of
appeal to the High Court was to be subject to

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the same conditions and restrictions as
appeals to His Majesty in Council ..... In the
meantime, if the matter were not of the
appealable amount, or the prescribed time had
elapsed before the actual establishment of the
High Court, without an assertion by the
unsuccessful party of his right of
appeal ..... his right was gone.

So that acknowledges what I was putting to
Your Honour Mr Justice Brennan, that they
understood that the right was limited to acting
within time -
But as to appeals from federal Courts or
Courts exercising federal jurisdiction other
considerations arise. There is much force in the contention that the jurisdiction of those
Courts was, from the first, intended to be
subject to the right of appeal to the
High Court, and that that right, being a right
conferred by the Constitution itself -

so he speaks of it as a right -
upon suitors, could not be lost or taken away by mere inaction of the Parliament, or in any
other way except by actual legislation
prescribing exceptions. The temporary
inability to exercise a statutory right by
reason of a delay which, from the nature of
the case, was inevitable, in the passing of an
Act to determine the number of Judges of the
High Court, could not, in this view, operate
as a destruction or diminution of the right
itself.

Now, Your Honours, that is, as it were, hot off the
press - first case of the High Court - first
reported judgment of the High Court and it reflects
all the thinking that one finds in the debate.

Now, I will not stay long on two decisions because
they - one is The Tramways case, 18 CLR 54, at
page 77 - it starts at 76, in the judgment of
Mr Justice Isaacs, towards the top:
Sec. 73 confers the appellate

jurisdiction, which is given -

et cetera -
As to this qualification an argument was

raised which merits a moment's attention as it
ought not to be left in doubt: it was, that
Parliament cannot bodily except from the
jurisdiction given the whole class of some
proceeding, but can merely, in some way

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undefined by the argument, provide a check or

restriction upon the appeal. I wholly dissent
from that.

"Exception" means what it says. "An

exception," ..... "is that by which the granter
excludes some part of that which he has
already given ..... Here the grant of power to the Court is made by the Imperial Parliament general in the first instance, leaving it to
the Commonwealth Parliament to make what
"exceptions" from the grant it thinks
necessary ..... "Regulation" is the other word,
and emphasizes -

he says -
the force of "exceptions".
The phrase comes from the American

Constitution .....
The next phrase in sec. 73 is "to hear

and determine" ..... but the word
"appeal" ..... is used.
The ordinary meaning of "appeal" is

confined to cases where, on the substantive matter in litigation, the Court appealed to
may make its own order.

Well, he then goes on to deal with "appeal" as to
what is the nature of an appeal as distinct from
whether this is an appeal as of right or not.
Then in R v Murray and Connie, 22 CLR 437.

Now that provided, under the:
Commonwealth Workmen's Compensation
Act ..... that the decision of a County
Court ..... shall be final unless within a

prescribed time either party appeals to the
in which the County Court is situated.
High Court or the Supreme Court of the State

And it was said that that was:
an exception from the appellate jurisdiction
of the High Court within the meaning of

sec. 7 3.
One might think that it really was not an

exception, that they had a right of appeal and they
did not exercise it. They did not exercise it

within a time. But the Court, at page 441, on a
question of leave:

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29/8/91

Jurisdiction to entertain appeals is given by
the Constitution but is given "with such

exceptions ..... " By the express terms of
clause 2 ..... the provision that the
decision ..... is to be final is made subject to
the condition that, unless an appeal is
brought within the time prescribed by
regulation, the decision is to be final. That
is a clear exception of such a case from the
jurisdiction of this Court to entertain
appeals from such decisions, and, the time
prescribed having expired, we have no
jurisdiction to grant leave to appeal.

The exception is in saying that it shall be final
which meant that it should not be subject to

appeal. But it then it goes - it is a wrapped up
provision that says, "Well, if you don't appeal

within a certain time it shall be final". And the
Court obviously thought that the appropriate
construction of that was to treat it as an
exception.
In the same volume, at page 103, the case of

Federated Engine Drivers, the provision was:
that the decision of the Justice is not to be
subject to any appeal to the High Court in its
appellate jurisdiction -

and it was held that that was -
an exception from that jurisdiction within the
meaning of sec 73 of the Constitution.

And at pages 117 and 118, they said at the foot:
As to the power of the Parliament to

except this order from the appellate power, it

is beyond serious question. The relevant
words were referred to in the Tramways Case -

and then they say, "Well, in fact, they've done
something like this in Murray and Cormie's case.
And at the foot of 120 Mr Justice Higgins deals
with the same point.
Bell v Stewart, 28 CLR 419, there is the

passage at the foot of 424, in the joint judgment.
And it was suggested that, on orders nisi to
review orders made by Courts of Petty
Sessions, the Supreme Court would not, on
appeals on questions of fact, reconsider the
evidence ..... The argument is based upon a
misunderstanding of the Appellate Rules. The
right of appeal is given by the Constitution,

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right, but merely regulate the procedure by
which the appeal is brought.

That is the regulation.
It follows that it is the duty of this Court
in the present case to give its own judgment
according to its own opinion in the same
manner as on appeals from a Judge sitting
without a jury.

And they go to the substance of the matter.
Although not on the Constitution, Chow Hing v R, 77 CLR 449, is instructive.
This was an ordinance under section 122, but

it adopted the terminology of section 73. That is
in section 16. At 459, in the middle, it is set
out and, about 10 lines up:
These provisions in terms give a right to
appeal to the High Court without imposing any
condition as to obtaining leave. But it will
be observed that the jurisdiction of the High
Court to entertain appeals is given "with such
exceptions -

et cetera.
No ordinance has been made since the Act was passed, but it was suggested thats. 16(8)
continued the operation of the provision in
the Judiciary Ordinance -

and then that is set out.
This provision, however, refers to the exercise of jurisdiction by the new Supreme
Court or its judges ..... Accordingly, s. 16(8)
does not in my opinion continue the operation

in relation to the High Court of the provision
of the Judiciary Ordinance.

Now, again, at 474 and 475, Sir Owen Dixon, and he says, at the top of page 475, after
referring to 73(2):
A reference to Jolley v Mainka and Ffrost v
Stevenson will show that on any view our
jurisdiction to entertain the appeals cannot
now be denied. Unless an ordinance has been
made imposing a condition that leave shall
first be obtained the appellants are entitled
to appeal as of right.

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So those provisions have been held to confer an

appeal as of right. The same view is expressed at
the foot of 488 by Mr Justice Williams.
Can I now take Your Honours to Collins v

Marshall, 92 CLR 529. As I mentioned to
Your Honours, we place particular reliance on this
and the following case because they do involve a
non obiter consideration of the relevant matters.
Section 31 -

the relevant section -
provides: (1) There shall be an appeal to the
court -

that is the Conciliation and Arbitration Court -
from a judgment or order of any other court in
proceedings arising under this Act ..... or
involving the interpretation of this Act; and
in proceedings arising under an order -

et cetera.
(2) Except as provided in the last preceding
sub-section, there shall be no appeal from a
judgment or order from which an appeal may be
brought to the court under that sub-section.

Now, it was held that that section was invalid. It
conferred an appellate jurisdiction on the court
from State courts exercising State jurisdiction,
and then the power conferred on Parliament by
section 73. There is a statement in the headnote
of Mr Justice Taylor's, and Your Honours might
recall that he recanted on that.
Now, fundamentally, an understanding of this

case depends upon an understanding of what is a
matter, but that is not the aspect of the case that

I wanted to take Your Honours to. At page 537, the
judgment of the Court:
On the application for special leave the

attention of this Court was directed to
s. 31 ..... as a provisions which might seem to
take the matter out of the appellate
jurisdiction of this Court but which, as it
was said, did not amount to an exception under
s. 73 of the Constitution from this Court's
appellate jurisdiction and moreover did not
cover this case and in any event was invalid.
On the hearing of the appeal the question
whether s. 31 operated to deprive the
appellant of the right which would otherwise

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exist to appeal by special leave to this Court
was argued. Counsel for the appellant and for
the respondent united in attempting to place
upon the provision one meaning or another
which would ensure that it would not have this

effect. We thought it desirable however to
hear counsel for the appellant in respect of
certain of the constitutional grounds -

and then the section is set out. At the foot of
the page:
The proceeding before the Metropolitan

Industrial Court was not, of course, a
proceeding "under" the Conciliation and
Arbitration Act ..... But the defence to which
the magistrate gave effect called for a
consideration of the character and scope of
the award ..... In this sense the "proceeding"
may involve the interpretation of the award
within the meaning of s. 3l(l)(b). It was for
that reason that the proceeding before the
Metropolitan Industrial Court appeared prima
facie to fall within the description given by
s. 31 ..... There is a number of difficulties of
a constitutional character in applying the
section according to what might be considered
the natural meaning of its terms. In the
first place it is obvious that the words
"appeal ... from a judgment or order of any
other Court" cannot include judgments or
orders of this Court. For the High Court is the Federal Supreme Court under s. 71 of the
Constitution; an appeal lies to it from any
other Federal court under
s. 73(ii) ..... Parliament could not, and we may
be sure did not, intend to include this
Court ..... In the next place sub-s. (2) cannot
constitutionally operate to exclude from the
appellate jurisdiction of this court a
judgment decree order or sentence of a Supreme

Court of a State in a proceeding arising under the Conciliation and Arbitration Act or
arising under an order or award, if the matter
is one in which at the establishment of the
Commonwealth an appeal lay from the Supreme
Court to the Privy Council. For bys. 73 of
the Constitution it is provided that no
exception or regulation -

et cetera -

If this means "lies as of right" -

and later they assume it does -

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such an appeal lay : effect in the case of
every such Supreme :~rt, except that of
Tasmania, where the Judgment involved
500 pounds or more. In the case of the
Supreme Court of Tasmania the amount was
1,000 pounds. It was suggested too that the
language of sub-s. (2) of s. 31 is not very
apt to express ~n intentional exercise of the
power conferred on the Parliament bys. 73 of
the Constitution to make exceptions from the
subject matter of the appellate jurisdiction
of this Court. It was contended that an
interpretation of sub-s. (2) which treated it
as not meaning to exclude an appeal to the
High Court was justified by these three
considerations, namely the inapplicability of
the phrase "any other Court" to the
High Court, the incompetence of sub-s. (2) to
exclude all appeals of the stated description
from the Supreme Courts to the High Court and
the use of general and not very apt language
if an exercise was intended of the power to
make exceptions. But if we are seeking the
real meaning of the legislature, it is
difficult to resist the impression of a reason it is difficult to adopt the suggestion
general intention to confine all appeals of
the description stated to the Court of

and they go on to deal with that -
It is therefore necessary to turn to the
grounds which go to the validity of s. 31,
either wholly or in part.
The first to be considered is an excess

of the constitutional power in supposed
reliance upon which it is assumed that the
provision was enacted. It is assumed that,

treating the Court of Conciliation and
Arbitration as established under the power
conferred by the words "such other Federal
Courts as the Parliament creates" ins. 71 of
the Constitution, the legislature sought to
exercise the power conferred bys. 77(i)
which, with respect to any of the matters
mentioned in ss. 75 and 76, enables the

Parliament to define the jurisdiction of any Federal Court other than the High Court. That of course implies thats. 77(i) was invoked on the footing that it applied to appellate as well as to original jurisdiction of Federal

courts. On any footing the jurisdiction which
may be "defined" is restricted to the nine
descriptions of "matter" -

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in those paragraphs -
Section 31 of the Act is based on none of these paragraphs with the exception of
s. 76(ii) - matters arising under any laws
made by the Parliament. It is conceivable
that within a proceeding arising under the Act
or an order or award or involving the
interpretation of the Act or an order or
award, a matter capable of satisfying one or
more of the other paragraphs might be found.

They are really dealing there with the question of matter. If Your Honours go to the foot of
page 540:
It follows that independently of any other
ground of invalidity so much of s 31(1) must
be void as attempts to give an appellate
jurisdiction to the Court of Conciliation and
Arbitration in proceedings that do not arise

the Act ..... It follows that sub-s (2) on its
very terms cannot apply to such proceedings.

under ..... but do involve the interpretation of interpretation of the Act and of an award,
must therefore fall outside both sub-s (1) and
sub-s (2) of s 31.
Two further points which have not been

discussed are involved in what precedes. One
is thats 77(i) would suffice to empower the
Parliament to confer appellate jurisdiction
over State courts in matters arising under a
law made by the Parliament, it is the appeal
and not the original proceeding that must

answer the description. It may often be a
distinction without a difference.

Then they go on to deal with that.

Yet it seems certain that the court, the
jurisdiction of which is defined in terms of s
73(ii) can receive jurisdiction only in
respect of what, when that court becomes
seised of it, is a matter arising under the
law of the Parliament.

Then further down:
Section 31(1), however, "defines" the
jurisdiction by reference to what arises in
the original proceeding.

And then they go on to deal with the question of
matter again, and I will not trouble Your Honours with that. They then say at the top of page 542:

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But independently of the foregoing
considerations, s 31 must be held to be ultra
vires. It attempts to give an appeal from
State courts although the State courts may not
be exercising Federal jurisdiction ..... Indeed
s 31 entirely disregards the distinction

between State and federal jurisdiction. The
only basis that can be put forward for an
attempt to clothe a federal court with
appellate power over State courts exercising State jurisdiction consists in a combination
of s 71 ands 77(i) of the Constitution.
Taking the Court of Conciliation and
Arbitration as a Federal court ..... counsel
intervening for the Commonwealth maintained
thats 77(i) enables the Parliament with
respect to any matter within the nine
categories ..... to confer appellate
jurisdiction on that court.

Then in the middle of page 543:
On the face of the provisions they amount to
an express statement of the Federal
legislative and judicial powers affecting
State courts which, with the addition of the
ancillary power contained ins 51(xxxix), one
would take to be exhaustive.

Here talking about the position under our
Constitution in contradistinction to the
Constitution of the United States which, we would submit, is an important statement because I have no doubt that my friends might seek to get some
benefit out of some comparison with Article III of
the United Stated Constitution.
To construe the very general words of s 71
relating to the creating of other Federal
courts and of s 77(i) relating to the
definition of their jurisdiction as containing

control of State courts exercising State
a power to establish a further appellate
functions would seem to be opposed to the
principles of interpretation, particularly
those applying to a strictly federal

instrument of government. When the content of
s 73(ii) is examined two very important
considerations telling against such an
interpretation are seen. In the first place a
new Federal court of appeal if brought into
existence would clearly be a Federal court
from which an appeal would lie to the High
Court. It may be assumed that when that
provision speaks of a court from which an
appeal lies to the Privy Council that means
lies as of right. If the court subject to the

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appeal to the supposed new Federal court of
appeal was a Supreme Court of a State or a
court whence an appeal lay as of right at the
establishment of the Commonwealth, there would
be a parallel right of appeal to the High
Court. This would be true too if the primary
court were exercising Federal jurisdiction.
That would mean that alternative rights of
appeal would exist from State courts to
different Federal courts of appeal, one being
subject to appeal in its turn to the other.
It is true that the Parliament has a power of
making exceptions from the subject matter of
the appellate jurisdiction of the High Court,
but the power is limited in the case of
Supreme Courts in the manner already described and moreover -

that is the second paragraph -
after all it is only a power of making
exceptions. Such a power is not susceptible
of any very precise definition but it would be
surprising if it extended to excluding
altogether one of the heads specifically
mentioned bys 73. For example, if the
Inter-State Commission were established the
power cou..:...: hardly extend to excepting all
judgment~ ~ecrees orders and sentences of that
body from the appellate jurisdiction of the
Court.

Now we say that that applies very directly to section 33 of the Federal Court of Australia Act,
because it does purport to accept all judgments,
decrees, orders and sentences by way of appeal as
of right from the Federal Court of Australia and
they have already said that they say that the word
"appeal" is referring to appeal as of right.
In any event it is the intention of

section 73(ii) that is important and according
to that intention, until an exception were
validly made, an appeal would lie to the High
Court from courts which, on the hypothesis
required, would be subject to an alternative
appeal to the supposed new Federal appeal
court. In the second place it is apparent
from section 73(ii) that the principle or
policy which it embodies was to place the
court that is supreme in the State judicial
hierarchy under the appellate jurisdiction of
the High Court and no other State courts,
unless they were invested under
section 73(iii) with Federal jurisdiction. It
would be incongruous with this principle to
give at the same time a constitutional power

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29/8/91

to create other subordinate Federal courts to
hear appeals from State courts exercising
State jurisdiction.
Now, Your Honours they then go on to deal with

the difference between the Supreme Court of the
United States and the High Court from page 544 to

page 546 towards the end. I will not read that
because I do not think I need to but it is an
important part of the reasoning in
Collins v Marshall.

MASON CJ:

Yes we shall read it, Mr Ellicott.

MR ELLICOTT: Yes, Your Honours. Now, another part of this

case which I will not read, but again it is
important. This is the passage at page 557, half-
way down, to the foot of page 559, in the judgment

of Mr Justice Taylor. Now he was at pains to say
that there could be no exception, except in
relation to some aspect of the judgment appealed
from, that is, that it involved a matter of 500
pounds sterling, or 300 pounds sterling, as it may

have been then, or upwards. He said that you could
not except matters on the basis of the

subject-matter which they involved. Now, he
withdrew those remarks in Cockle v Isaksen, but the
significance of the passages in his judgment are
that he took an even stricter view than the
Full Court.
Cockle v Isaksen is in 99 CLR 155 and the

section there, which I think was a substituted

provision:
The Court has jurisdiction to hear and
determine an appeal from a judgment -

et cetera -
of a State court ..... made, given or pronounced

Sub-section (3): in a matter arising under this Act.
An appeal does not lie to the High Court from
a judgment, decree, order or sentence from
which an appeal may be brought to the Court
under sub-section (1) of this section.
With some doubt the High Court held that that was
valid.
Now, at page 164 in the joint judgment of the

Chief Justice and Justices McTiernan and Kitto,
they say at the foot of page 164:

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29/8/91

With some misgiving we have come to the
conclusion that the sub-section can be
sustained as a law substantially with respect
to matters arising under a federal law ..... At
the same time it cannot be denied that the law
is one going, or possibly going, beyond that

category. The provision however is
distributable ..... The central point is whether
the section sufficiently manifests an
intention to legislate with respect to a
matter within section 76(ii) -

Now they say:
If an appeal is of the class properly falling
within sub-section (1) then according to
sub-section (3) it is not an appeal that lies

to this Court. The provision must rest for
its validity upon the words in section 73 of
the Constitution which authorise exceptions.
Section 73 begins - "The High Court shall have
jurisdiction, with such exceptions and subject
to such regulations -

et cetera -
then follow the descriptions of
judgments ..... It is upon the legislative power
to prescribe exceptions that sub-section (3)
rests. An exception assumes a general rule or
proposition and specifies a particular case or
description of case which would be subsumed
under the rule or proposition but which,
because it possesses special features or
characteristics, is to be excluded from the
application of the rule or proposition. It is
not a conception that can be defined in the
abstract with exactness or applied with
precision; it must depend very much upon
context.

decision, I think Attorney-General v T & G Mutual, Your Honours later, when we come to another the Court in relation to the word "limitation" in
section 74 made some remarks about whether in the
course of limiting you get to the point where the
whole purpose of the section or the jurisdiction
was destroyed, and likewise, as I said earlier, we
would submit that the word "exception" has to be
looked at in the same way; that is to say, there
may come a point when there is so much exception
that the appellate jurisdiction of the Court is
destroyed:
Section 73 defines the appellate jurisdiction
of this Court by reference to the judgment
decrees orders and sentences from which there

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are to be appeals. In every case the judgments
decrees orders and sentences are defined by
reference to the courts and tribunals by which

they are given made or pronounced. In the case
of each description of court or tribunal the
intention of s.73 doubtless is that the general
rule shall be that the High Court has
jurisdiction to hear and determine appeals from
its judgments decrees orders or sentences.
From that general rule the legislation is
empowered to prescribe exceptions. In the
present case there is no attempt to use the
power to prescribe exceptions so as to destroy
the general rule, in relation to any court or
tribunal or class of courts or tribunals
comprised within s.73, that an appeal shall lie
from its judgments decrees orders or sentences.
The class of judgments etc. with which s.113(3)
is concerned is included within that part of
par.(ii) of s.73 .....

It concerns State courts -

et cetera, and he says:
What that means is a question dealt with in
the earlier part of this judgment in the
course of the discussion of the validity of

sub.s.(l) of s.113. Does that amount to
prescribing an exception or exceptions under
s.73? It will be noted that the judgments etc.
to be excepted are described not by reference
to the courts giving them save that ex
hypothesi they must be State courts exercising
federal jurisdiction and must not be Supreme

Courts. From what has been said about sub-
s.(l) of s.113 it will be seen that upon
analysis the judgments etc. are really defined
by reference to the matter involved in the
appeal, that is to say by reference to the fact
that a matter arising under the Conciliation

and Arbitration Act is involved in the appeal
from the judgment etc. It is difficult to see
why that should be an inadmissible ground of
exception.

This is where they depart from Mr Justice Taylor's
view.
The ground relates directly to the judgment
etc. as something either actually inherent in
it or alleged by the appellant to be inherent
in it. It is true that it relates rather to
its legal basis than its operative effect as
between the parties, its pecuniary
significance, its finality or its
interlocutory character.

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They say those because those are matters commonly regarded as being tests for determining whether
there should be a right of appeal or not.
But familiar as these are as grounds for
restricting or regulating appeals from
judgments orders etc. they are not exhaustive.
It is not desirable to go beyond the precise
ground of exception which s.113(3) appears to take. It is enough to say that it fixes upon a description of judgment decree ..... it does
not eat up or destroy the general rule laid down by the Constitution that appeals shall
lie to this Court from judgments decrees
orders and sentences of courts of a State
exercising federal jurisdiction.

That is clear authority for the distributive
construction of section 73, the general rules being
that all judgments, et cetera, from a Federal Court in our case, and because section 73 does except all
appeals from judgments of the Federal Court as of
right, then it has to be invalid, according to that
reasoning.
Now, Mr Justice Williams, in a judgment which

spans 167 to 172, deals with this matter and we

particularly rely on the whole of it. I will try
not to read all of it, but there are some important

passages in it. I must say all of it is important
to our argument, but I will just pick out some of
the passages. About two-thirds of the way down
167:
The validity of sub-s. (3) depends upon
whether it is an "exception" ..... The appellate
jurisdiction ..... is "with such exceptions -

et cetera -

The section also provides that no exception -

and he goes on to deal with the second paragraph.
The words "subject to such regulations as the Parliament prescribes" are not apt to deprive
this Court of any jurisdiction to hear appeals
from the judgments, decrees, orders and
sentences mentioned ins. 73 but only to
regulate the procedure by which such appeals
may be brought to this Court.

And that is very important to our argument.

But the jurisdiction is also granted "with
such exceptions as the Parliament prescribes"
and an "exception" in the words of

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29/8/91

Buckley J ..... "is a taking out, a subtraction
from, that which has previously been
expressed ..... It is a particular thing or
things excepted -

and he goes on to deal with that.
The Parliament of the Commonwealth is

therefore empowered by s.73 of the
Constitution to except altogether from the
appellate jurisdiction of this Court part of
the judgments -

et cetera -
of the courts ..... and of the Inter-State

Commission. But it is not thereby empowered
to take away completely the whole of its
jurisdiction to hear any appeal from these
judgments ..... The appeals that can be taken
away are at most exceptions from such appeals.
The judgments, decrees, orders and sentences
referred to ..... seem really to fall into five
classes -

and he describes those.
it would appear that the power to except does
not extend beyond the power to except appeals
from part of the judgments -

and he refers to Collins v Marshall and quotes from
that. At the foot of the page there is reference
to the Federated case and the passages that I have
already referred the Court to. There is also a
reference to Watson v The Federal Commissioner of
Taxation, 87 CLR 353, which is relevant. He then
refers to what Mr Justice Taylor said and he says,
in the middle of 171 that he is unable to
agree:

It is in my opinion wide enough to empower the
Parliament to except in the case of State courts exercising federal
jurisdiction ..... judgments, decrees, orders or
sentences made, given or pronounced in matters
arising under the two particular Commonwealth
Acts.

Then he says:
If the word "exception" ins. 73 be
insufficient to empower the Parliament to
deprive this Court of jurisdiction to hear
appeals from judgments, etc., in certain
matters, how could it suffice to deprive this
Court of jurisdiction to grant at least

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special leave to appeal in such matters simply
because an appeal had not been instituted
within a prescribed time? The Parliament must
have power to except appeals in such matters
from the jurisdiction of this Court altogether
if it can prohibit such appeals -

now, there again, the clear distinction between
appeals as of right and appeals by special leave -
simply because they are not brought within a
specified time. It could no doubt regulate
such appeals by providing that they could only
be brought as of right within a specified

time. But it could not destroy such appeals

altogether. The proviso ins. 73 of the
Constitution that no exception or regulation prescribed by the Parliament shall prevent the
High Court from hearing -

et cetera -
in any matter ..... because it is implicit in
the language of this proviso that but for its
presence the Parliament could under its power
to prescribe exceptions remove from the
appellate jurisdiction of this Court
judgments ..... in some of the matters in which
at the establishment of the Commonwealth an
appeal lay from such Supreme Court to the
Queen in Council.

Mr Justice Webb at 173, and Mr Justice Taylor at
175-176.
Now, those two cases, we submit, are clear

authority for the submission that we are making,
namely, that appeal means appeal as of right; that

an exception is an exception of something which is
only part; and that you cannot use the excepting
provision to take away the whole; and that the

general rule is the general rule applicable to each
court as one reads distributively through
section 73; and that you cannot take away from one
court the whole of the appeals in relation to it.

MASON CJ:	Mr Ellicott, am I right in thinking that Parkin v James is not mentioned in the judgments in either
Collins v Charles Marshall or Cockle v Isaksen?
MR ELLICOTT:	I do not remember any reference to it,

Your Honour. I think that is probably right and it
may be - it is certainly not in Cockle v Isaksen.

MASON CJ:

I have looked at the table of cases cited in the

front.

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29/8/91

MR ELLICOTT:

I had not checked that but I do not remember

seeing it referred to. That is a matter that
Your Honours may think is significant but we would
submit that those two cases are so embedded in our
thinking that they represent the perceived view of
the Court up to the time when in 1984 these changes
were made. There are a number of cases which - - -

DEANE J:

Mr Ellicott, when was it that the amount for an

appeal to this Court exceeded the Privy Council 500
pounds for the first time?

MR ELLICOTT: If one is talking about Australian dollars, I

think it was in the 1950s. Your Honour, can I just
check that?

DEANE J: It was 1500 pounds at one stage.

MR ELLICOTT: Yes, and then it became $3000.

MASON CJ: That must have been about 1965-66.

MR ELLICOTT:

When it became $3000, yes.

DEANE J: It was 1500 pounds for a long time before that,

was it not?

MR ELLICOTT:

It was.

Under 5(0), that is the 1955 Act,

omit 300 pounds, substitute 1500 pounds.

DEANE J:

1955?

MR ELLICOTT: Yes, Your Honour. Cockle v Isaksen was after

that and Collins v Marshall, I think, before that.
And the various amendments are set out in the book
following that.
Can I refer Your Honours to Moller v Roy,

132 CLR 622? The appeal in this matter was of note
because the Court obviously felt that it had to

acknowledge a right of appeal but it seemed to be a
matter that should not come to the Court and

various views were expressed. At the foot of 624
the then Chief Justice said:
It must be observed at the outset that

s 46 does not in terms confer rights of
appeal. Section 46 gives the Court
jurisdiction to hear and determine appeals of
the described kind. It is an exercise of the
power conferred on the Parliament ..... Its
counterpart in the Judiciary Act is based on

s 73 of the Constitution. The right to appeal
is derived in each instance from the
obligation of the Court to exercise the
granted jurisdiction, an obligation implied in
the grant.

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At 627:
It has been suggested that the word

"judgment" ins 46 does not refer to the
formal order -

and His Honour deals with that. At the foot of the
page -
The section has its difficulties and,

properly construed, it may bring to the Court
appeals which perhaps it may be thought ought
not to be entertained. But the Court is not
master of that situation. It is given a
jurisdiction and it is bound to exercise it.
If the judgment is not for a sum of money but is some other form of order, the question will
arise as to what was the matter at issue in
the proceedings which it terminated and what

is the value of that matter. I should have
thought that the matter at issue would be
determined by looking at the pleadings or, if
no pleadings, to the substance ..... Equally,
where it is not a judgment ..... it will be
necessary to determine whether the judgment or
order etc involves directly or indirectly a
claim etc -

At the foot of 629:
I have made these extensive quotations

from this judgment to indicate that the
claimed amount could be used by an
unsuccessful plaintiff to establish
prejudice ..... but also to indicate how
unsatisfactory it must be in relation to a
judgment which satisfied the
description ..... to go beyond its
amount ..... Both upon the construction of
par. (a), and upon consideration of the
practical exigencies of the administration of

its appellate provisions, in my opinion, no
more is required to establish the Court's
jurisdiction ..... and the correlative right of
appeal than the existence of a judgment for
the required sum -

et cetera. At page 632-3, I think it is fair to
say that all the other Justices agreed with the
Chief Justice on the view that there ought to be an
appeal as of right, but at the foot of 632
Mr Justice Gibbs:
This case provides another example of the

unsuitability of the statutory provisions by
which the jurisdiction of this Court is

regulated. A court which has the ultimate

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responsibility for interpreting the
Constitution, and for the development of the
law throughout Australia, cannot afford to
occupy its times with the consideration of
cases which raise no questions of substantial
importance. If the Court is to be deluged
with appeals of no real significance, its
efficiency will inevitably be impaired, since
the members of the Court will be deprived of that time for depth of study and maturity of
deliberation without which a final court of
appeal cannot adequately perform its

functions. To make the right to appeal depend
on the amount of the judgment from which the
appeal is brought, or even on the amount in
dispute, is a crude and imperfect way of
defining the jurisdiction of an appellate
tribunal, for it is obvious that a matter
involving a large sum of money may be of no
legal or social consequence, whereas a matter
in which the amount at stake is small may
raise issues of the greatest significance.

Now, litigation, Your Honours, is for parties, and
they regard the amount involved as of tremendous
significance. That is what the judicial process is
about.
Other more efficient means - such as the
restriction of appeals for matters in which
special leave to appeal is given - should be
adopted to sift out appeals that raise no
question that calls for consideration by a
final court of appeal. Moreover, it is quite
anomalous and undesirable that it should be
possible to bring appeals to this Court direct
from the decisions of single judges, except
perhaps, in cases in which there exists a
precedent, binding on courts other than this
Court, which it is sought to overturn; one consequence of allowing such appeals to be

brought is inevitably that this Court is required to consider matters which could have
been satisfactorily disposed of elsewhere.
One obvious reform would be to restrict the
appellate jurisdiction of this Court to cases
that had already been considered by an
appellate court, subject to the possible

exception already mentioned. Some may see
the provisions of s. 73 ..... as a possible
obstacle to that course, but those provisions
would certainly not render invalid an
enactment that no appeals should be brought
without the special leave of this Court and if
such an enactment were passed it would be
possible for this Court to enunciate the

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principles upon which it would entertain
appeals brought direct from single judges.

Now that passage was, I think, adopted. It was obviously obiter. It may have been a plaintiff cry

by the Court. I think it is fair to say that it
was uttered in 1975 and at least one
Attorney-General heard the cry and when the
Judiciary Act was amended in 1976, appeals from

single Justices were made by special leave. Now,
whether that contravened that second paragraph
would be a matter of debate in this case. But, in
fact, what the Court was talking about there, was
not appeals at large, it was talking about. whether
appeals from single Justices should go direct to
the High Court, and it was not directing its mind
to the issue before the Court at this time, but if
it be thought that it was, well, obviously, with
very great respect, this is not a considered
judgment of all the matters that we are seeking to
advert to in this matter now before the Court.

The other passages: Mr Justice Stephen at

page 638 point 9, Mr Justice Mason, as he then was,
at page 639 point 9, and Mr Justice Jacobs at
page 640 point 5.
In Attorney-General v T. & G. Mutual,

144 CLR 161, questions began to arise in relation

to the Privy Council. The Act which abolished
appeals from the High Court to the Privy Council by
way of special leave was held to be valid and, at
page 167, at the foot of the page:
On behalf of T. & G. it was argued that the
last sentence of s. 74 confers on the
Parliament a power to restrict the classes of
matter in which special leave to appeal may be
sought, but not to abolish completely the
right to seek special leave. This argument

was primarily based on the use of the words "limiting" and "limitation" ins. 74 and to

that extent adopts the views expressed by
Quick and Garran ..... In support of this
argument, reliance was also placed on the
introductory words of the third paragraph of
the section which, it was said, indicate that
it was not intended that the royal prerogative
should be impaired except to the extent
provided ..... Further it was argued that a law
made under s. 74, to be valid, must limit the
jurisdiction of the Judicial Committee by
reference to a description of the matters in
which special leave may be asked and that the which special leave may be asked by reference
to anything pertaining to the character of the
matters as such, but instead takes as its

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criterion an accidental circumstance, namely
the date on which the proceedings were
commenced.

And then, over the page, at 169:
At first sight it might appear, as Quick and
Garran suggest, that the use of the word
"limiting" implies that some matters must be

left within the limit. However in the context
of s. 74 it appears that it was intended that
the Parliament should have the power to limit
away altogether the matters in which leave
might be sought. It will be observed that the
Parliament was not given the power ..... to abrogate entirely ..... since the first two paragraphs of the section preserve appeals in
inter se matters ..... Also it must have been
contemplated that the Parliament might not
wish to do away at once with the right to seek
special leave in all other cases; it would
have been natural for the Parliament to move
progressively towards the ultimate goal that
judgments of this Court should be final, as it
in fact has done. In these circumstances the
use of the words "limiting" and "limitation"
is not inappropriate to confer a power from
time to time to limit the matters in which
leave may be brought until no such matters
remain. If the section is construed as
requiring that some matters, however few and
rare, must remain in which special leave may
be sought, the result will be absurd and, from
a constitutional point of view, valueless. On that construction the Parliament might validly
limit the matters in which leave might be
sought to matters which in practice would
never be likely to arise - for example, to
matters arising under a particular treaty
which by its nature could hardly occasion
litigation, or to matters affecting
representatives -

et cetera.
The result of the construction suggested by
Quick and Garran, and by T. & G. in the
present case, would be that for all practical
purposes the Parliament would be able to
abolish appeals to Her Majesty in Council from
this Court ..... although it could not do so in

form. A construction which would make the
validity of a law depend upon the ingenuity of
the legislature in this way would serve no
constitutional purpose and cannot have been
intended by the framers of the Constitution.

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Now, Your Honours, we would submit the same

reasoning would be applied to the construction of the word "exception"; that it is unthinkable that
those words, "with such exceptions", should be used
so that this Court, to use the words of
Sir Edmund Barton, would be a mere shadow of a

Court of Appeal. The exception was there for a
purpose; the purpose is clear: to stop trumpery
and minor cases.

The other passages: Mr Justice Stephen at

page 638 point 9, Mr Justice Mason, as he then was,
at page 639 point 9, and Mr Justice Jacobs at
page 640 point 5.
In Attorney-General v T. & G. Mutual,

144 CLR 161, questions began to arise in relation

to the Privy Council. The Act which abolished
appeals from the High Court to the Privy Council by
way of special leave was held to be valid and, at
page 167, at the foot of the page:
On behalf of T. & G. it was argued that the
last sentence of s. 74 confers on the
Parliament a power to restrict the classes of
matter in which special leave to appeal may be
sought, but not to abolish completely the
right to seek special leave. This argument
was primarily based on the use of the words "limiting" and "limitation" ins. 74 and to that extent adopts the views expressed by
Quick and Garran ..... In support of this
argument, reliance was also placed on the
introductory words of the third paragraph of
the section which, it was said, indicate that
it was not intended that the royal prerogative
should be impaired except to the extent
provided ..... Further it was argued that a law
made under s. 74, to be valid, must limit the
jurisdiction of the Judicial Committee by
reference to a description of the matters in

which special leave may be asked and that the

Act of 1975 does not define the matters in which special leave may be asked by reference
to anything pertaining to the character of the
matters as such, but instead takes as its
criterion an accidental circumstance, namely
the date on which the proceedings were
commenced.

And then, over the page, at 169:
At first sight it might appear, as Quick and
Garran suggest, that the use of the word
"limiting" implies that some matters must be

left within the limit. However in the context
of s. 74 it appears that it was intended that

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the Parliament should have the power to limit
away altogether the matters in which leave

might be sought. It will be observed that the
Parliament was not given the power ..... to
abrogate entirely ..... since the first two
paragraphs of the section preserve appeals in
inter se matters ..... Also it must have been
contemplated that the Parliament might not
wish to do away at once with the right to seek
special leave in all other cases; it would
have been natural for the Parliament to move
progressively towards the ultimate goal that
judgments of this Court should be final, as it
in fact has done. In these circumstances the
use of the words "limiting" and "limitation"
is not inappropriate to confer a power from
time to time to limit the matters in which
leave may be brought until no such matters
remain. If the section is construed as
requiring that some matters, however few and
rare, must remain in which special leave may
be sought, the result will be absurd and, from
a constitutional point of view, valueless. On
that construction the Parliament might validly
limit the matters in which leave might be
sought to matters which in practice would
never be likely to arise - for example, to
matters arising under a particular treaty
which by its nature could hardly occasion
litigation, or to matters affecting
representatives -

et cetera.
The result of the construction suggested by
Quick and Garran, and by T. & G. in the
present case, would be that for all practical
purposes the Parliament would be able to
abolish appeals to Her Majesty in Council from
this Court ..... although it could not do so in

form. A construction which would make the

validity of a law depend upon the ingenuity of
the legislature in this way would serve no
constitutional purpose and cannot have been
intended by the framers of the Constitution.
Now, Your Honours, we would submit the same

reasoning would be applied to the construction of the word "exception"; that it is unthinkable that those words, "with such exceptions", should be used
so that this Court, to use the words of
Sir Edmund Barton, would be a mere shadow of a

Court of Appeal. The exception was there for a
purpose; the purpose is clear: to stop trumpery
and minor cases.

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Apart from the supreme court appeals, what was

minor and what was trumpery and what should be
excluded was obviously left as a matter for the
legislature to determine, but what was not left to the legislature was the power to abolish the right of appeal altogether, because, let there be no
debate, I would submit, that the power to grant
special leave is not a substitution for the right
of appeal nor is this Court's power to hear and
determine an appeal after special leave is granted
a substitution for the Court's jurisdiction to hear
and determine an appeal when a person who falls
within certain prescribed limits comes to it and
says, "Hear my appeal as of right." And the two
things are inconsistent.
In 145 CLR 246, Southern Centre of

Theosophy v South Australia, it was held that the
jurisdiction of the Privy Council to entertain
appeals from State courts remained.
Mr Justice Gibbs, as he then was, at page 259,
having referred to, in the middle, Ibralebbe v The
Queen.
The argument that the Constitution itself

modified the right of appeal to this Court
finds no support in the words of that
instrument. In the course of this argument,
reference was made to a statement by
Mr Justice Jacobs ..... With all respect, the
Constitution correct, for the concluding paragraph of
statement that the is silent on
the prerogative to receive appeals from the
section 73 refers to "the conditions of and
restrictions on appeals to the Queen in
Council from the Supreme Courts of the several
States". That provision is only intelligible on the assumption that appeals could continue
to be brought from the Supreme Courts of the
States, and affords positive support for the

view that the framers of the Constitution did not intend that it should affect any existing right of appeal to the Privy Council from
those Supreme Courts. Of course, for those
existing rights to be affected, it would be
necessary to find in the Constitution an
indication that this was intended. There is
not the slightest indication of any such
intention.

And, at the foot of the page:
It does not follow from the fact that no

appeal can now be brought from any decision of
this Court to the Privy Council ..... that no
appeal can be brought from the Supreme Court

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to the Privy Council. There is simply no
reason in law or in logic for drawing that
conclusion. It may indeed by thought
anomalous and inconvenient that there be two
ultimate courts of appeal ..... The possible
difficulties and complications were discussed

in Viro v The Queen. However, inconvenience
provides no reason to ignore legal principle,
and we have no power to declare rights non-
existent simply because it seems anomalous
that they should exist. Section 74 has no
application in this situation.

Now, clearly enough, he is treating the appeal as a
right of appeal.
In Caltex v X.L. Petroleum, 155 CLR 72 at

page 72, this is a case where one of the parties
wanted to go in two directions and the question of
resolving the two by judicial comity was discussed.
At page 79 a third of the way down:
Dixon J thought that the mere coexistence

of rights of appeal to different courts from the one judgment gave rise to inconsistency. He considered that the coexistence of federal
and State jurisdiction with respect to the
same subject-matter could only be explained by
reference to "the special nature of the
legislative authority ..... " However, there are
many instances in which the coexistence of
rights of appeal to different courts of appeal
has not been thought to create an

inconsistency. When appeals from the one
judgment are taken to two courts, judicial
comity requires either that the appeal to the
lower appellate court in the hierarchy be
withdrawn so as to enable the higher court to
exercise its appellate jurisdiction or that
the appeal to the lower court proceed on the
footing that it is the order of that court,

not the order of the court below, that is the
subject of appeal to the higher appellate
court.

He then says:
All this is by way of background .....
Section 73 provided for the appeal to this
Court and the proviso to that section recognized the existence of the appeal to the
Judicial Committee ..... Of course these
provisions formed part of a framework in which
the appeal from the High Court to the Judicial
Committee qualified by the necessity for a
certificate in relation to inter se
questions ..... makes the point that in this

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situation there was no inconsistency arising
from the coexistence of the two rights of
appeal.

And at page 81 in the middle of the page:
To say this involves no deprivation of a
constitutional right to appeal to this Court.
Indeed, in this context to speak of such a
constitutional right serves to confuse rather

than to clarify. As we have seen, the
Constitution provides for and recognizes a
right of appeal both to this Court and to the
Judicial Committee from the judgments of the

Supreme Courts of the States. What has
already been said in demonstrating the absence
of any inconsistency or repugnancy is no more
than a reflection of the accepted principles
application to a situation where there exists
a right of appeal to two courts from the one
judgment.

I quote that again to emphasize, if it needs emphasis, that the Court has consistently regarded
section 73 as conferring a right of appeal as well
as vesting, in this Court, jurisdiction.
In Attorney-General v Finch (No 2), which

is in the same volume at page 115, there is a

passage from which my friends get some solace, they
think, thinking that Your Honours may have decided
this case by a side wind, but that may have been,

we would submit, supreme optimism. Towards the
top of page 115:
Argument was advanced before us that it

is s 73 of the Constitution itself which
directly brings about the result that a
decision of the High Court refusing special
leave is final and conclusive. Under s 73,
the High Court has jurisdiction with such

exceptions and subject to such regulations as
the Parliament prescribes, to hear and
determine appeals from all judgments, decrees,
orders and sentences of, amongst other courts,
the Supreme Court of any State and the
judgment of the High Court in all such cases

shall be final, and conclusive. The finality
of judgments of the High Court in such cases
is subject to the grant of special leave to
appeal by Her Majesty in Council, which is
preserved bys 74 of the Constitution, but
that is in turn subject to the power granted
bys 74 to the Parliament.
The requirement of s 35 that certain

appeals, including appeals in criminal

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matters, shall not be brought to the High
Court except by special leave, constitutes the
regulation of appeals for which s 73 of the
Constitution provides.

Now, that is the sentence that Your Honours will
have read to you repeatedly, I would imagine, and
relied upon by the defendants and interveners.
Your Honours, first of all, understanding what our
argument is - first of all, this is talking about
the cases where "certain appeals including appeals
in criminal matters, shall not be brought", it is
talking about although the Judiciary Act amendment
was made in April 1984, and although it came into
effect, I think, on 1 June 1984 and although this
judgment was given after that, it would be apparent
from the judgment, no doubt because the matters
arose beforehand, that the Court was talking about
the previous regime.
In the light of our argument, we would submit,

and I have already put this but because of what significance might be placed on this sentence I
want to bring it out again. If an exception is
made in relation to particular matters and then it
is said that those matters may be the subject of
appeal if special leave is granted or leave is
granted then, as I put earlier, that is an
exception. That is, there has been excepted out of
the jurisdiction of this Court to hear and
determine those particular matters. That power to
except must carry with it the power to alleviate
the exception.
Although the Court has used the words

"regulation of appeals" there, we would submit that
the Court was not concerned to make the analysis
that we are concerned to make here and that
Your Honours should not regard those words as
somehow determining the matter in issue before this

Court as if what happens under special leave is a
regulation of appeals because we would submit it
cannot be the regulation of appeals because there
is as yet no appeal.
If in some way it is regulation then it is

regulation of the alleviation of the exception. It
is providing a procedure whereby this may happen
but it is not within the words "subject to such
regulations" as Parliament prescribes within the

meaning of section 73. The Court goes on:
But it is pursuant to s. 35 of the Judiciary
Act - the regulation - that an application for
special leave is determined and its
determination is not the determination of an
appeal within the meaning of s. 73.

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That, of course, is important because the Court -
and this relates not only to this argument but to
other arguments later - is not exercising judicial power, we say, in relation to the grant of special leave.
On the question of special leave, may I just

take Your Honours quickly to three cases? The
first of them is Reg v Collins, (1975) 133 CLR 120.
At page 122 and 123, the Court considered the
nature of special leave:
In the ordinary course of litigation,

criminal or civil, it is considered that a
party to proceedings should have the right to
present his own case. But an application for
leave or special leave to appeal is not in the

ordinary course of litigation. The practice
of this Court in granting or refusing leave or
special leave makes this clear. First, until
the grant of leave or special leave, there are
no proceedings inter partes before the Court.
This is no even in a case in which the
application for leave or special leave is
opposed. Whilst notice of intention to move
the Court for leave or special leave may be
given in writing, which is filed in the
Registry of the Court, the motion for leave or
special leave is made orally in court.
Notwithstanding that the notice of intention to apply is served on persons who may be
interested to oppose the application, the
intending applicant is not bound to move the

Court. When the motion is moved, the
applicant for such leave or special leave is no more than an applicant desiring to obtain
the Court's leave to commence proceedings in
the Court. Secondly, the application must exhibit features which attract the Court's
discretion in granting leave or special leave.
There is no right to leave or special leave.

In the latter case, the matter must involve

questions of general public importance. The
special nature of the application must be
maintained -

et cetera -
We do not think that an applicant for leave or
special leave can be described as a party
within the meaning of s. 78 of the Act.
The Court was very quick to exclude section 78

of the Judiciary Act. There is another question -
leaping forward, and we are hoping this question
will not arise - as to whether on special leave the
Court has to be constituted by the seven Justices

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of the Court because section 35 speaks of the High
Court. Now, the Judiciary Act is not dealing with anything other than the exercise of the federal

jurisdiction and as in this case, section 78 of the
Judiciary Act was said not to apply, we would be
saying that you cannot apply the provision of the
Judiciary Act that says the Court may exercise its

jurisdiction with one or more Justices. You cannot
apply that to special leave applications. That is

in the Judiciary Act. You can only define the High
Court by reference to the provisions in the High
Court Act itself which says "The High Court shall
consist of a Chief Justice and six Justices".
Forgive me for leaping ahead but this was an

opportune moment perhaps to cover the content of

that argument. I will come back to it but I shall

not have to deal with it at great length. It is
easily understood and comprehended and we hope Your
Honours will not have to consider it because the
invalidity of these sections will be readily
apparent to Your Honours.
Attorney-General v Finch (No 1), at 102. It

was held there that a decision of the High Court
given on an application for special leave to appeal
was not a decision given on appeal and that would
be, we would submit, for similar reasons. I just
refer Your Honours - the reference at 105 - the
reference to a decision given on appeal - I am
sorry, half-way down:
The form and effect of sub-s (1) of s 3

is that special leave to appeal to Her Majesty
in Council from a decision of the High Court may be asked only in a matter ..... There is a
clear distinction between an appeal and an
application for special leave to appeal.
Where a right of appeal is conditional on the grant of special leave to appeal, there can be
no appeal until special leave is granted. The

grant is an essential preliminary condition to
the existence of the appeal. Refusal on the
other hand denies the existence of an appeal.
The reference to a decision "given on

appeal" should be read in its ordinary sense,
ie to a decision given on an actual appeal as
distinct from a decision given on an
application for leave to bring an appeal.
This reading of the sub-section is in conformity with the purpose of the statute,
namely, to strengthen the position of this
Court under the Constitution as a final court of appeal for Australia by limiting the
matters in which an application may be made

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for an exercise of the prerogative to admit an
appeal to the Privy Council.

And Coulter v Reg, 164 CLR 350. There is the
judgment of the Chief Justice and Justices Wilson
and Brennan at 356 point 4 which again stress the
nature of special leave not being:
a proceeding in the ordinary course of
litigation ..... It is a preliminary procedure
recognized by the legislature as a means of
enabling the court to control in some measure
the volume of appellate work requiring its
attention. Oral argument is a valuable aid to
adjudication in some cases but an application
may be so patently meritorious or
unmeritorious that oral argument would be an
unnecessary occupation of the court's time.

Now, that is getting close to it being certainly
not an exercise of judicial power, but not an
exercise of a power judicially. But there it is,
and that is how the Court has described the
exercise of its discretion on an application for
special leave.
But Justices Deane and Gaudron have been even

more forthcoming in their description of this
exercise. At page 359 point 3:
The requirement that leave or special leave be
obtained before an appeal will lie is a
necessary control device in certain areas of
the administration of justice ..... in this
country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of
justice in those appeals which are, in all the
circumstances, appropriate to proceed to a
full hearing before the particular court. It
also represents a constraint upon the overall

cost of litigation by protecting parties,
particularly respondents, from the costs of a
full hearing of appeals which should not
properly be entertained by the relevant court
either because they are hopeless or, in the
case of a civil appeal to a second appellate
court, because they do not possess special
features which outweigh the prima facie
validity of the ordinary perception that the
availability of cumulative appellate processes
can, of itself, constitute a source of
injustice. In these circumstances, it is
neither surprising nor regrettable that the
application for leave or special leave to
appeal has, in this country, become a
generally accepted and standard part of

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ordinary curial procedures. In a case such as the present where the application for leave to
appeal was from a criminal conviction or
information to a first court of appeal
exercising general supervisory appellate
jurisdiction, the requirement of leave
effectively represents no more than a means of
efficiently disposing of prospective appeals
which would obviously fail since it is
difficult to envisage circumstances where a
competent application for leave to appeal to
such a court could properly be refused in a
case where the conviction should be set aside
if leave were to be granted and the appeal
were to proceed to a full hearing.
On the other hand, the application for

leave or special leave to appeal commonly
possesses a number of special features which

set it apart from at least some other judicial
proceedings. First, it involves the exercise
of an extremely wide judicial discretion.
Secondly, and notwithstanding that refusal of the application ordinarily involves the final determination of the particular litigation,
that wide discretion can commonly be exercised
without the provision of detailed or,
sometimes, any reasons. Thirdly, if the
application is to the court which will hear
the appeal if leave is granted, there is a
risk that the ordinary appearance of judicial
disinterest in the outcome of proceedings may
be, albeit wrongly, seen as qualified in that
the workload of what will ordinarily be an
already overburdened bench will vary according
to the number of successful applications.
Fourthly, it is inevitable that a refusal of
leave will be sometimes seen by an
unsuccessful applicant as a decision to close
the doors of the court in his face rather than
as an examination and reasoned rejection of

his claim that he has been the victim of a

below. The effect of these special features
of judicial proceedings dealing with
applications for leave to appeal is not to
lessen the importance of the ordinary
safeguards of the administration of justice.
To the contrary, the effect is to emphasize

the importance that they be observed. Among
those safeguards is the ordinary rule that
judicial proceedings should take place in open
court.
Your Honours, that statement and description
miscarriage of justice in the court or courts

of the nature of a special leave application, in itself, has many statements which administrators

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and politicians might make. I am not saying they
are not appropriate for Your Honours to have made
them - that is not the point of my remark - but it
does show that the power which is vested in the
Court is a very unwieldy, uncontrollable and
uncontrolled power. There does not appear to be
any duty in the Court to exercise - there is nobody
who can direct the Court to exercise it. The Court can act in a way which, if a body that was supposed
to act judicially acted, would immediately lead to the determination of that body being ruled invalid as offending the principles of natural justice.
To say that is not to be critical, but it is

to make a point and it does raise the rhetorical
question: would one imagine that in the light of
what we have read from the debates and what was
said in Cockle v Isaksen that the whole of the
exercise of the judicial power of this Court in an
appellate jurisdiction should depend upon such an

uncontrolled and uncontrollable discretion. To say
that is not said with offence to Your Honours; it
is simply to highlight the argument that this, in
the light of that and in the light of the debates,
et cetera, and in the light of the words in the
Constitution that I have emphasized, I would submit
that this could never have been intended.
Now, it may be that those who sat on a

Judiciary Act review committee - as numbers of us
did, present in this room - found difficulty

might go as of right and others that would not.

finding other means of distinguishing appeals that the amendments in 1976 which, at least, increased the limit and did certain others things to

alleviate the workload of this Court. What one
cannot do, we would submit, is to allow, as

Parliament has done, the frustration of those matters to justify it, saying, "Well, it is too

hard. We will give the jurisdiction which we
cases to the Court so it can determine it in

have - the power, in effect - to legislate about
individual cases".
I will come back to that argument later, but

again I have touched upon it now simply because it does, in a sense, leap from the pages
that I have just read, and I make the submission,
and as I will make later, and it is made in our
written submissions.

McHUGH J:

Mr Ellicott, the second paragraph of section 73

seems to assume that without it the Parliament
could abolish appeals from the supreme courts of
States. If that be so, what is there to stop it

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from abolishing appeals from Justices of this Court
or courts exercising federal jurisdiction?

MR ELLICOTT:

Your Honour, what stops it is the view that we

are pressing on this Court, that the word
"exceptions" does not permit of abolition and that
what was said in Collins v Marshall and Cockle v
Isaksen that there is to be found a series of
general rules that, although you can except
particular judgments on certain bases from
particular courts, you cannot except all the

judgments of a particular court. You could not
except all the judgments et cetera of the Federal
Court. That would be, we would submit, clearly
inconsistent with the decision in Cockle v Isaksen
and Collins v Marshall and the second paragraph is
not expressed really as a fear against abolition
because it was quite clear to those who were in the
debate that the word "exceptions" was only entitled
to deal with minor matters but they wanted to be
absolutely sure that in relation to appeals from
State courts the definition of what was a minor
matter was going to be confined to the definitions
of 1900.

McHUGH J:	On that view the only thing in the second paragraph that adds anything to the first paragraph
are the words "in any matter".
MR ELLICOTT:	No, with respect, Your Honour, under the

second paragraph, as we have submitted, the
Parliament is confined to exceptions which are
measured by those which were laid down at the time
of Federation in relation to appeals to the Privy
Council. Under the earlier provisions the
Parliament could provide, for instance, that there
should be no appeal from the Federal Court of
Australia in matters involving less than $500,000.

They could do that. Now what they cannot do, in
our submission, is say, "There shall be no appeal;
the Court shall not have any authority to hear and

determine appeals as of right from all judgments of
the Federal Court of Australia" as they in effect
have said. They have not said it that way, but
that is the effect of it. They could say that
there shall be no appeal as of right in relation to
appeals on particular matters, for instance,
questions raising quantum of damages, say. There
would be no appeals as of right in relation to that
as was said in 1976.

McHUGH J: Well could Parliament say, "There shall be no

appeals from the Federal Court on all matters,
except taxation matters, otherwise than by special
leave?"

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29/8/91

MR ELLICOTT: Well, that raises this question that I have

already addressed the Court on. Is there a point -
and we do not have to answer it here - where

exception amounts to destruction? And just as this
Court said in the earlier case relating to
Privy Council and the word "limitation", it is not
to be thought that the word "exception" could be
used to destroy the very thing that the
Constitution obviously wanted to sustain, that is,
this Court, as an appellate Court, from
Federal Courts established by the Parliament.

McHUGH J:

You have been directing much of your argument to

the word "exception", but what about the word,
"regulation", is not that what - does not Parkin v

James say that that is what it covers, the content

of special leave.

MR ELLICOTT: Let us have a look at Parkin v James.

MASON CJ:

For the first time, Mr Ellicott?

MR ELLICOTT: Well, obviously not Your Honour's first time,

but Your Honour, it is not my first time.

MASON CJ:	You are keeping the best till last.
MR ELLICOTT:	No, Your Honour, I am keeping this to put it

into its context and it has got to be read in the
context of Hannah v Dalgarno and another case that

I will refer Your Honours to. The case is not
offensive to our argument and I will expound that
as we go through. Page 330 - it has to be
remembered that what the case was about; an order
was made a by Judge of the Supreme Court of
Victoria sitting in chambers upon an originating
summons, by which the rights of the parties under a
will are finally decided is, under the statute law
of that State, an order of the Supreme Court. That
was the question, whether it was an order of the
Supreme Court, and at 329, towards the bottom:

It was suggested that the term "the
Supreme Court of any State" was capable of meaning the Court of ultimate appeal in the
State, as distinguished from the Court
actually designated by that name, in other
words, that the word "Supreme" is used as an
adjective of quality and not of designation;
and it is pointed out that in sec. 71 the
High Court is called a Federal Supreme Court.
We all know that at the time of the establishment of the Commonwealth the designation of the highest Court of Judicature
in each State was the "Supreme Court," and
that appeals then lay from those Courts to the
Queen in Council. If the suggested meaning

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were accepted, the mention of the Supreme
Court by name would be unnecessary, since the
words "any .. Court -

et cetera -
from which .... an appeal lies," would have been
sufficient to include the Supreme Court.
These words are, however, clearly used to
designate Courts other than the Supreme Court,
and as distinguished from it. It is a matter
of common knowledge that the immediate purpose
of their insertion was to include the
appellate tribunal of South Australia
consisting of the Governor in Council,
although it by no means follows that in their
application they are confined to that
tribunal. Applying then, the ordinary canons
of construction, we cannot entertain any doubt
that the term "Supreme Court" is used in the
Constitution to designate the Courts which at the time of the establishment of the

Commonwealth were known by that name. It may
be that the term would also include Courts
established under another name in substitution
for them.
An appeal to the High Court is,

therefore, given from all judgments, decrees,
orders and sentences of the Supreme Courts, but
until the Parliament otherwise provided, the
existing conditions and restrictions on appeals
to the Queen in Council were to be applicable
to such appeals, while Parliament had power to
make exceptions from the right of appeal, and
to prescribe regulations as to its exercise -

that is, exercise of the right of appeal, and -
subject to the condition that the power of
this Court to hear and determine an appeal, in

any matter in which an appeal then lay to the
Sovereign in Council, should not be denied.

Now, they are very positive words, they favour everything that we have submitted.

It will be convenient to consider: (1)

What was the law applicable to appeals from the courts of a State to the Sovereign .....

(2) What were the the existing conditions of
and restrictions on appeals from the Supreme
Courts -

Then he goes through a path that Your Honours will be familiar with in Your Honours' days at the bar

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in relation to the Privy Council. Towards the foot
of 331:
Under this Statute it has been the

practice to make Orders in Council applicable
to all appeals from the Supreme Court of a
colony or possession, and containing specific
restrictions ..... There can be no doubt that under this Statute the Sovereign in Council can give leave to a suitor to appeal from any
decision of any Court whatever in a colony or
possession, and as little that the Sovereign
can grant such leave in respect of a decision
of a Judge of a Supreme Court acting as a
Court of first instance, whether the general
Order in Council applicable to that Supreme
Court includes such a decision or not.

And then there is a reference to Harrison v Scott
and other cases.
The general Orders in Council prescribed the conditions on which the Court appealed from
was bound to grant such leave, while in all
other cases a special order for leave by the
Sovereign in Council was necessary.
It was contended for the respondent that

the words "in which ..... an appeal lies", as
right" or "by right of grant," as it is
used in the second paragraph of s 73 of the of
called by text writers, using those as
synonymous with the term "without special
leave." The words "an appeal lies" are twice
used in that section. In the first paragraph
the words "from which ..... an appeal lies to
the Queen in Council" are used as words of
description to designate the Courts referred
to. In the second paragraph the words "Any
matter in which ..... an appeal lies to the
Queen in Council" are used in the same way to

designate certain matters with respect to
which the Parliament is to have no power of
making exceptions. It is clear that in the
first paragraph the words "an appeal lies"
cannot be limited in the manner suggested.
The Supreme Court was a Court from which an
appeal lay to the Queen in Council, in the
sense in which the words are there used, quite
irrespective of the question whether special
leave was or was not necessary in any

particular case. And it is not easy to
suggest a valid reason consistent with the
usual rules of interpretation of Statutes for
putting a different construction upon the same

words in the second paragraph. On

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consideration, moreover, it will be seen that
the argument is based on the fallacy that the
term "as of right" is synonymous with "as of
course," so that an appeal could not be said
to lie as of right unless it lay "as of
course." But the words "as of right" and "as
of course" are not synonymous. For instance,
a writ of prohibition is said to be a writ of

right but not of course. We cannot see any
sufficient reason for interpolating either
form of words after the words "an appeal
lies."
In one sense, and we think the truer

sense, every appeal law as of right. In some

cases it lay as of course upon compliance with
conditions prescribed in advance by a general
Order in Council, in others only on compliance
with the condition of obtaining special leave.
But every suitor was entitled as of right to
ask the aid of the Sovereign in Council, which might be granted or withheld. In our opinion,
the words "any matter in which ..... an appeal
lies" are words of qualification or
description having reference to classes of
cases as differentiated by the nature of the decision or right affected, e.g., a decision of the Court sitting as a tribunal to decide disputed elections and do not refer to the
differentiation imposed by the general Orders
in Council as between decisions in cases of
the same class.
We find then that at the time of the -

Well just stopping there, the word "appeal", as I
was putting to Your Honour Mr Justice Brennan
earlier, and the use of it as of right, is equally
open to the interpretation that it is referring to
any situation where, under the Orders in Council,
there would be an appeal as of right. They might
call it here in this judgment "an appeal as of

course", but when one reads the Orders in Council,
one might ask, "Well, is there ever any appeal as
of right?" in the sense that those words have been
used in this Court in the other cases I have
referred to, because you have to go to the
supreme court and you have to satisfy them that you
have got 500 pounds involved or you had to and you
had to satisfy them that you had given sufficient
security.
It might have been thought - and then, after

that, you have got conditional leave and then you
have got leave. But nobody ever thought that that

was other than a right of appeal to the Privy

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Council. All that was happening was that the so-
called colonial court was policing matters for the
Privy Council so that when they got there,
everything was in order. But it was regarded as an
appeal as of right.
In other cases, there would be appeal by leave

in the other sense, and that would either be by the

colonial court or by the Privy Council. It might
be called special leave in relation to the Privy
Council, although I think if one looks at the
Orders in Council that are in that book we have

handed up, I think they use the word "leave". But
little turns on that.
But in either event, that is to say, whether

final leave was given in relation to a matter which
was clearly as of right, or whether you treated it
as as of right in the first instance with the
colonial court having the right to look at it and
tick it off, and it was within the limit, et
cetera, or whether in addition you look at it as
referring to an appeal which a person is entitled
to bring, leave having been granted - that is,
leave or special leave in that sense - that is not
inimical. In other words, the distinction in these
pages here - 332 and 333 - is not inimical to our
argument because the second full paragraph of
section 73 can be so construed.
That is to say, that those appeals as of right that you have, one being as of right in the strict
sense, the other being as of right on leave given
according to certain principles, those shall not be
detracted from; there will be no further
restriction of those. That thinking at those pages
is consistent with that.
I do not think there is anything in the next page, but I do not want to not deal with something
- I think I will read - at the top of 334 we get

into the words "exceptions": This being the state of the law
applicable to appeals, the Constitution came
into force, by which an appeal is given to the
High Court from all judgments of the Supreme

Court of any State ..... The latter words are
not material on the point now under
consideration. They do not qualify the words
"all judgments ..... of the Supreme Court
of any State", and it is in our opinion
impossible to limit these words to cases in
which an appeal lay as of course or without
special leave. It is clear, therefore, that
an appeal lies to this Court from every
judgment ..... unless it has been taken

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73 MR ELLICOTT, QC

29/8/91

away or qualified by some exception or
regulation made by the Parliament of the
Commonwealth. The power of the Parliament in
this respect is limited by the provision that no such exception or regulation shall prevent
the High Court from hearing and determining
any appeal from the Supreme Court of a State
in any matter in which at the establishment of
the Commonwealth an appeal lay to the Queen in

Council. We have already pointed out that
these words, in our judgment, are intended to
create a discrimen depending upon the nature
of the decision and not upon the terms of the
particular Order in Council.
That would support an argument that you were

looking at matters. It does not authorize taking
away all the matters or cutting them down.
If, however, the latter view were accepted,
the only effect of this provision would be
that the Parliament could not by any exception
or regulation take away the right of appeal in
any case within the Order in Council
applicable to the State, but would be free to
do so in any case that did not fall within the
Order. In this view the question for decision in each case would be whether the Parliament
has in fact made such an exception.
Full effect can, indeed, be given to the

words empowering the Parliament to make
"exceptions" by holding them to be applicable
to appeals from the other judgments mentioned
in section 73, namely, judgments of Justices
exercising the original jurisdiction of the
High Court, judgments of any other Federal
Court or Court exercising Federal
jurisdiction, and judgments of any other Court
from which an appeal lay to the Sovereign in
Council.

of these Justices? Well, clearly, it would not be Stopping there, is that to be accepted as the view
that that was their view of the limits of the word
"exception". It should be confined, in effect, to
the first paragraph. They are saying it may not be
necessary but obviously the second paragraph says
"no exception or regulation", so "exception" does
apply to the State supreme courts.

The term "regulation" in the first and second paragraphs of 73 appears to be used as synonymous
with the terms "conditions and restrictions" in the
third paragraph. It is an apt word as - - -

Smith Kline(3)

29/8/91

MASON CJ: Stopping there, does that not signify that

Their Honours are saying that the requirement for special leave is to be characterized as regulation?

MR ELLICOTT:

They are using the word "regulation" there in

a way which treats it, by itself, as synonymous
with conditions and restrictions and -

MASON CJ:

And, two pages earlier, at 333, they appear to

have treated the requirement for special leave as a
condition, if you look at the central paragraph on
page 333.

MR ELLICOTT:

Yes.

It would be appropriate to say that in

relation to the Privy Council, conditions and
restrictions involved the notion that before an
appeal lay as of right in various cases, special leave would have to be obtained, that is to say, the words "conditions and restrictions" in that
context of the third paragraph could be so
regarded.
That, however, does not mean that the word

"regulations" - indeed, why did they not use the
word "regulations"? They did not; they used
another phrase, "conditions and restrictions". And
in not using it, we would submit first of all, that
those who drew the Constitution must have intended
a difference.
Now, if the result of this judgment is that

the word "regulations" is appropriate to describe
the operation, that is, the words "subject to these
regulations" in the first two lines of section 73
is appropriate to describe the requirement of
special leave in certain cases, we would submit

that it was wrong. It just is not consistent with

the wording of the Constitution. And it was not
part of this decision to draw that comparison.
This is obiter in relation to that particular
statement, and this statement would be, in our

submission, completely inconsistent with the
notions that were expressed in both Cockle v
Isaksen and Collins v Marshall.
Although those cases were concerned with exceptions, the exceptions were obviously, we would
submit - of course, they were talking about matters
such as interlocutory matters, criminal matters;
remember in that passage in Cockle v Isaksen there
are other basis for saying that there should not be appeal as of right - they obviously had in mind the special leave or leave provisions with which the
Court was obviously very familiar, and they were
treating a provision there which subjected certain
matters to leave or special leave as an exception
and not as a regulation.

Smith Kline(3)

29/8/91

Now, to that extent, this case is inconsistent

with those, and as a matter of language is to be
preferred, because if you say, as the Constitution
does, that the High Court shall have jurisdiction
with such exceptions and subject to such
regulations, and if it is concluded that it is
intended to give a right of appeal without those exceptions and subject to such regulations, then the phrase "subject to such regulations'' is apt to
describe the means by which Parliament will
prescribe how appeals are to be conducted as
distinct from how appeals as of right shall come
into existence. Is that an appropriate time?

MASON CJ: Yes, it would be convenient, Mr Ellicott, and we

will resume at 2.00 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ: Yes, Mr Ellicott.

MR ELLICOTT:

Your Honours, we were at Parkin v James,

page 335. At the top of the page:
The term "regulation" in the first and second paragraphs of sec. 73 appears to be used as
synonymous -

we have dealt with that. Then they go on:
We proceed to consider the conditions of

and restrictions on appeals which existed at
the establishment of the Commonwealth. These
were, in part, contained in the general Orders

required the Supreme Court to grant leave to
in Council, which, in the case of Victoria,
appeal from final judgments in certain
specified cases, including cases in which a
civil right of the value of 500 pounds was
involved, and empowered them in their
discretion to grant leave to appeal from
interlocutory judgments of the same class.
Now, presumably, they were treating those as

coming within the term, "conditions and
restrictions", whether they treated them as
conditions or restrictions but certainly within the
term "conditions and restrictions". In either
case, it was a condition of the appeal that the
appellant should give security to an amount to be
fixed by the supreme court not exceeding 500

Smith Kline(3)

29/8/91

pounds. This Order in Council prescribed both
restrictions and conditions. That provision of:
In either case it was a condition of the
appeal that the appellant should give security

we would say that that is a regulation of an appeal
because this was fundamentally an appeal as of
right if the 500 pounds was there and it was part
of the ordinary jurisdiction of the court to
require security in relation to an appeal if they
wished to, particularly if it was going over yonder

to the Privy Council. So that is consistent with
our view of regulation because it is regulating
what, fundamentally, is a right of appeal.
This Order in Council prescribed both

restrictions and conditions. With regard to
cases not falling within the terms of the
Order in Council, there was no restriction -

that is, there was no restriction in terms of
amount, I suppose, or quality, except one might
have thought it was implicit in it not falling
within the other; in other words, less than 500
pounds -
but it was a condition of the appeal that
special leave should be granted by the
Sovereign in Council.

In relation to that, we submit, of course, it is
not regulation. That is an exception.

BRENNAN J: But do you accept that it is a condition?

MR ELLICOTT: Well, they call it a condition.

BRENNAN J: Well, where do you put the requirement of

special leave within section 73 in the third
paragraph, anywhere?

MR ELLICOTT:

We would say that in toto it was a restriction

because unless you had special leave there was no

appeal. So there was excepted out matters which
fell below 500 pounds sterling. Then, if there was
to be an appeal, you had to get special leave.
Now, in a sense you can say, if you did not have an
appeal as of right, you could only appeal if you
had satisfied the condition of getting special

leave. But it really is dealing with the language
differently to the way in which the word
"exception" applies at the top of the section.
In other words, what we resist is the notion

that somehow, by a side wind, by the use of the

Smith Kline(3)

29/8/91

words "conditions and restrictions", you can
somehow give a meaning to either "exception" or
"regulations" that enable special leave to be
treated as if it were a regulation of appeals,
because it just, in our submission, cannot be if
there is no appeal.

BRENNAN J: If it falls within paragraph (iii), that is, the

special leave requirement falls within the third
paragraph of section 73, do you treat the word
under which it falls, whether you call it
restriction or condition, as falling within either
"exception" or "regulation"?

MR ELLICOTT:	We treat it as "exception".
BRENNAN J:	As an exception?

MR ELLICOTT:

Yes.

It is an exception because the Privy

Council would have no jurisdiction to hear and
determine under the Order in Council the appeal,
and those are excepted out of its jurisdiction to
hear as of right. That is the same way in which we
submit the word "exceptions" is used in the first
part of section 73.

BRENNAN J: That raises some difficulties of construction,

does it not, because the third paragraph is
obviously conferring upon the Parliament a
legislative power to prescribe conditions and
restrictions?

MR ELLICOTT:

No, all it is saying is, until Parliament

otherwise provides, by exercising its power of
exceptions and regulations, then the conditions of

and restrictions on appeals to the Privy Council

shall be applicable to appeals from them to the

High Court. It is not conferring a power to

provide for conditions and restrictions on appeals.
That would allow the tail to wag the dog, with

respect, because that would enable the second

paragraph to be circumvented.	The word "prevent"
would have no meaning at all.	It would take it

away entirely.

BRENNAN J: That is attributing to the second paragraph the

meaning for which you contend, then coming to a
conclusion as to what the rest must mean.

MR ELLICOTT: That is right, but that would also be

completely inconsistent with what was said by this
Court in Cockle v Isaksen and Collins v Marshall.

BRENNAN J:

No doubt you will come to it, but there is a

passage on page 336 of Parkin v James which seems
to cause some difficulties to me, in the way in
which you - - -

Smith Kline(3)	78	29/8/91
MR ELLICOTT:	I will, Your Honour.	We come now to the third

point:
What regulations has the Parliament
prescribed?

Now, by asking that question it is quite clear that the Court was not treating the third paragraph
as conferring a power to impose conditions or
restrictions, because they do not ask: what
conditions and restrictions have been provided?
They ask: what regulations have been prescribed?
So that that is an important question. If one

is going to analyse this judgment as if it was a
statute, that is an important part of it, so far as

their thinking is concerned. Then they say:
To answer this question reference must be made
to the Judiciary Act -

and they set it out. Then:
This section in one sense -

in one sense -
imposes restrictions upon appeals but the
restrictions are not absolute, since in all
cases an appeal may be brought by leave of the
High Court.
Now, that sentence, we would submit, has its

own limitations because it says:
in one sense imposes restrictions upon
appeals.

Well, we would submit, in every sense it imposes
restrictions on appeals as of right, and therefore

on the jurisdiction of the Court to hear and

determine appeals from judgments and orders. And
to go on and say that the restrictions are not
absolute is nothing more than to say that those
matters have been excepted out but provision has
been made that there can be an appeal if special

leave is granted. Now, to say that there is no
appeal is to prohibit the appeal; there just is not
an appeal as of right.
To go on and say, "But if you get special

leave that is not saying that you haven't said that
there cannot be an appeal as of right", you have
said it. But having said it, you can alleviate
that but without it being a lifting of the
prohibition. It would not be a lifting of the
prohibition on appeal, it is a different appeal.

Smith Kline(3)

29/8/91

It is an appeal that follows upon special leave
being granted. It then becomes an appeal with
special leave. But appeals as of right are

prohibited. To say they are not absolute, in our
submission, in the sense in which we put it, is to

play with the words. It is not part of section 73
but that is what they say:
The term "judgment" includes any
judgment ..... which must bear the same meaning
as they bear in sec 73 of the Constitution.
If the cases in which appeals might be brought
had been rigidly limited to those enumerated
in paragraph (a), the Judiciary Act would have
offended against the concluding enactment of
sec 73 of the Constitution, but paragraph (b)
removes this difficulty.

Now, all that is saying is that had it stopped at (a), that would have offended the prohibition in
the second paragraph of section 73. But have a
look now at paragraph (b) and that removes any
difficulty we would otherwise have because (b)
gives the High Court power to grant special leave

to appeal. And that was a power which the Privy
Council was able to exercise in relation to matters other than those that fell within paragraph (a) of

then section 35. And he says:
It follows that, by the combined operation of
sec 73 of the Constitution and sec 35 of the
Judiciary Act, an appeal lies to the High
Court from every judgment of the Supreme Court
of a State, subject to the regulations
prescribed by the Parliament.
I have made it clear that, in our submission,

the word "regulations" there does not apply to the
exception. It can regulate nothing other than
appeals.

One of these regulations is that except in the
specified cases, 1, 2, and 3, and in the case
of all interlocutory judgments, the leave of
the High Court must be first obtained.

That is not, in our submission, regulating appeals. That is providing a basis upon which you, having no
right of appeal, may otherwise obtain the right to
appeal by special leave.

DEANE J: But there you are arguing that Your Honours are

wrong. You cannot read that passage and that
sentence in context other than saying that the
requirement of special leave is regulation for the

purposes.

Smith Kline(3)

29/8/91

MR ELLICOTT:

I think that is probably so. There is a loose use, in our submission, to the word "regulations"

there.

The judgment itself gives no consideration

whatsoever to the word "exceptions". That in

itself might tell against it, if the Court is going

to place any weight on it. Not to have taken into

account the matters that have been adverted to in

Cockle v Isaksen and Collins v Marshall itself

surely throws some real doubt on this case.

McHUGH J:

But they were cases that really dealt with the exceptions. This case deals with regulation.

MR ELLICOTT: Yes, but I have already submitted to the Court

that in Cockle v Isaksen particularly they treated
as exceptions those areas where matters were
excepted on the ground of being interlocutory, for
instance, and those were exceptions. Here, on
analysis, the Court in Cockle v Isaksen would have
said these were exceptions; that is to say, they
had excepted out interlocutory judgments, they were
not regulating appeals, they were excepting out

appeals. Then they were saying, "Well you can have
an appeal if you get leave".

BRENNAN J: It is a very curious thing that, if your

argument is right, Cockle v Isaksen did not refer
to Parkin v James.

MR ELLICOTT:

Your Honour, I was looking for an explanation.

I wondered whether somebody could give us an
explanation from page 158 of Cockle v Isaksen,
99 CLR.

McHUGH J:

And a reference to junior counsel, is it not?

MR ELLICOTT: Well it was, Your Honour, but I cannot answer

that question of why Parkin v James was not cited.
May I say, I hesitate to think that it was not
cited - I hesitate to say that it was not cited not
because His Honour the Chief Justice is opposite me

but simply because the counsel involved, I should have thought having referred to those other cases, their endeavours. The fact is the Court does not,
but I would submit two things are unthinkable: one
is that the counsel involved would not have
referred to Parkin v James and alternatively that
Their Honours would have disregarded it.
would naturally have come across Parkin v James in
Now, there is a decision not long after Parkin

v James which is not terribly informative because
it denies - it is Kamarooka v Kerr, 6 CLR 255.
An action was brought in a district court

in Queensland in which the plaintiff sought to

Smith Kline(3)

29/8/91

recover from the defendant a sum of money less
than 100 pounds alleged to be owing as the
balance of purchase money in respect of a sale
by the plaintiff to the defendant of 18 tons

of flour. The contract was negotiated -

et cetera.
I am sorry, I have started reading at the page before. At page 255:
Application for special leave to appeal from a decision of Judge Box in the Court of Mines, Victoria, rescinding a previous order made by himself for the winding up of the applicant
company.
The applicants were the company and the

directors.

Counsel said:
An appeal lies from the decision to a Judge of
the Court of Mines but, as the applicants apply for special leave in order to save the
intend to appeal to this Court if the Supreme
expense of intermediate appeals. This is a
Court from which an appeal lay to the Queen in
Council at the establishment of the
Commonwealth within the meaning of section 35
of the Judiciary Act and section 73 of the
Constitution. Appeal there includes appeal by
special leave.

Now, that is precisely the point in Parkin v James,

and Parkin v James is referred to. And the very
same court says:
In that case the only question was

whether a Supreme Court Judge was such a

Court.

That is an interesting limitation on what that case
decided.
This application raises the difficult and
important question whether sec. 73 of the
Constitution includes Courts from which an
appeal only lies to the Privy Council by
special leave.

One would have thought that based on those passages
that I have been taxed with that that sentence
would not have been appropriate if Their Honours
had thought that they were making a conclusive
decision about the matter.

Smith Kline(3)

29/8/91

If there were no appeal to any other Court,
and by no other means could justice be done,
then it might be a matter for serious
discussion whether we could grant special
leave, but as the applicants have an appeal to
the Supreme Court and can, if necessary,
appeal from that Court to this Court, we do
not think that this is a case in which special
leave should be granted in order to raise it.

So they decided to deal with it that way.
So that Parkin v James itself, we would

submit, is unsatisfactory. If it is contrary to
our argument, we submit it is wrong. It is not in
accord with Cockle v Isaksen and Collins v Marshall
and ought not to be followed.
Now, Your Honour Mr Justice Deane put to me

when we had an exchange about the word "absurd" - I
have handed up a reference to Hughes and Vale
(No 1), 93 CLR, and the passage is at pages 26 and
27. I do not know whether it answers what

Your Honour was putting to me, but I would submit
it does.

DEANE J:

I do not think it is relevant to what I was

putting to you and that is that if you are looking
to see whether someone is prevented from doing
something, it seemed to me not to be correct to say
there was no difference between a provision that he
could not do it without somebody else's permission
and a provision that he could not do it without his
own permission.

MR ELLICOTT:

Yes.

Your Honour, it is on the second that we

would submit this is helpful. Your Honour probably
knows this passage off by heart - - -

DEANE J:

Yes I do.

MR ELLICOTT:

- - - but we would submit that what is said, particularly at page 27:

The truth is that it is possible to
regard such legislation as regulatory with
respect to trade and commerce if, but not
unless, we regard section 92 as referring not
to the trading and commercial activities of
individuals -

it is under the old regime -
but to a totality or general volume or
flow ..... A simple prohibition, or a
prohibition subject to discretionary
exemption, of the trade of an individual may

Smith Kline(3)

29/8/91

be regarded as regulatory of the general flow
or volume of trade. It cannot possibly be
regarded as regulatory of the trade of the
individual who is simply not allowed to carry
on his trade at all.

DEANE J:

Mr Ellicott, there would be no problem in my

accepting the proposition I query if the second paragraph of section 73 had said, "No appellant
shall be prevented from bringing his case to the
High Court." What it says is that "no such
regulation or exception shall prevent the Court"
and in that context it seems to me that a provision
that the Court needs somebody else's permission is
as far away as you can possibly get from a
provision that it is a matter for the Court itself
to decide whether it will entertain.

MR ELLICOTT: That indicates that Your Honour does not

embrace, very readily, the submission I put on that
matter. But that is no answer, in our submission,
to our other submission that -

DEANE J:

It is only a very narrow part of your case.

MR ELLICOTT:

Yes.

So far as Hughes and Vale is concerned,

that idea is helpful to the second paragraph
because you cannot say that if you cannot prevent,
you can avoid that by saying, "It is prevented but
you can lift the prevention". In other words, the
two things cannot stand together; they are both
prohibition or prevention, to use the word used in
that second paragraph.
Could I refer Your Honours to Morris v Reg, (1987) 163 CLR. There is a passage at page 475.
In the judgment of Mr Justice Dawson, I think
Your Honour the Chief Justice agreed with this:
In exercising this wide discretion to

grant special leave to appeal, it is proper
that the Court should be influenced by the
function which it performs as the final
appellate court in the judicial hierarchy.

The number of applications for special leave increases year by year, particularly in the criminal law. Since the number of cases with
which the Court can properly deal in any one
year is limited, it is inevitable that a
careful choice must be made having regard to
the duty which the Court has to develop and
clarify the law and to maintain procedural
regularity in the courts below. The Court
must necessarily place greater emphasis upon
its public role in the evolution of the law
than upon the private rights of the litigants
before it. Whilst procedurally and otherwise

Smith Kline(3)

29/8/91

this Court performs in many ways a truly
appellate function, more significantly it
operates as a court of review and this must
ultimately by the most important factor in the
selection of those cases in which special
leave to appeal is to be granted.
Now, Your Honours would appreciate that my

argument means that we would, with very great
respect, have to attack that as a statement of the
role of this Court and that it is inimical to the
rule of law to say that one would "place greater
emphasis upon its public role than upon the private
rights of the litigants before it" and not only
inimical to the rule of law but also inimical to
the role of the High Court under the Constitution
as we have sought to develop that in our
submissions earlier today.
This, however, is also a passage which enables

one to go into the other areas of our submissions.
I wanted to take Your Honours to that but before
doing so could I contrast that, although in a
dissenting judgment, with what fell from
Mr Justice Isaacs in Ross v R, 30 CLR 259. About a
third of the way down, he said:
In determining the question, we have to

bear in mind some fundamental truths as to our
own duties. First, we are sitting as an
Appellate Court of Criminal Appeal constituted by the will of the Australian people, not only for Federal matters, but as truly
representative of each State as its own
Supreme Court to guard and maintain its laws,
to protect the weak and to punish aggressors,
but at the same time to see that no person is
called on to suffer punishment except in
substantial accordance with law. It follows
that an Australian citizen does not approach

this Court, in either civil or criminal
matters, as a suppliant asking for
intervention by way of grace - as in the Privy

Council. He comes with a right to ask for
justice, and I hold, as I have fully stated on
a former occasion, that our sole duty in such
a case is to see whether justice to him

requires an appeal to be allowed. Any other
view is, in my opinion, contrary to the basic
conception of the Constitution as to the
judicial power in Australia.
Your Honours, we would see those in marked

contrast - those two passages. And although that
statement of Mr Justice Isaacs is in dissent and
although there was some debate, I think Eather v R,
19 CLR and 20 CLR, perhaps reveals it as upon what

Smith Kline(3)

29/8/91

basis special leave or leave - I think leave -
would be granted in relation to criminal matters.
Nevertheless, it is a fairly accurate statement, we
would submit, of what was perceived to be the role
of the Court at the time of Federation and, indeed,
would be a significant exposition of what was the
view of the Court until recent times in relation to
those matters. That applies not only to criminal
matters, as Your Honour Mr Justice Brennan has been
at pains to refer me to, but also to civil matters.
Your Honours, in our submissions from page 8

onwards we deal with two propositions - two broad
submissions: the impugned provisions are an

abdication of legislative power. I will not take
Your Honours to it, but the Parliamentary debate in relation to both the Federal Court and the State
Appeals will be founds under tabs 7(F) and (G) of
the book that we have handed up.
I referred earlier to the fact that the

Attorney-General - or Mr Bowen representing him -
in the course of indicating the Government's
attitude to the introduction of section 35 and 35A
had, in effect, treated the matter as being, I
would say it is not an exaggeration to say it is
too difficult, and therefore to have agreed to
accept the other proposition, namely that it should
be given to the Justices of the High Court.
I do not want to go into the history of that -

Your Honours are aware of it, but that is of
significant assistance, we would submit, to an
interpretation of the sections that came in,
because what happened as a result of that was that
we now have a provision which says:
The jurisdiction of the High Court to hear and
determine ..•.. is subject to the exceptions and
regulations prescribed by this section -

and then it says in subsection (2): an appeal shall not be brought from a
judgment -
et cetera -
unless the High Court gives special leave to
appeal.
What that does, we would submit, is to confer

on the High Court - and we would say invalidly
confer on the Court - a legislative function. In
other words, Parliament was given the task of
prescribing exceptions, and the word "prescribe" is
perhaps rather significant there. It is not the

Smith Kline(3)

29/8/91

word "provide". It rather suggests that those who
drew section 73 had in mind that the Parliament was
going to specify the exceptions and was also going
to make specific provisions about regulations of
the appeal, but that did not happen.
In this case they simply said, "Well, we are

unable to" - the executive was saying this - "we
are unable to do this; we'll leave it to the

Court". Now that, we would submit, is an
abdication of legislative power. It is abundantly
clear from the cases that we have cited to the
Court that this Court certainly is not exercising

judicial power in the ordinary sense. The Court
has been at pains to say that. It is not a lis
inter parties, and it does bear the description that I read from the joint judgment of Justices
Deane and Gaudron, and there is no appeal until

special leave is granted. The Court has clearly

said that. And so those propositions are there,

and determined by the Court. Now, that means, in
our submission - - -

BRENNAN J:

Why do you say there is no exercise of judicial

power? Because there is no lis inter parties. Is
that the proposition?

MR ELLICOTT: Well, I said there was no lis inter parties,

but it certainly is not the exercise of judicial
power. It may not simply be because there is no
lis inter parties.

BRENNAN J:

What is the reason why there is no exercise of

judicial power?

MR ELLICOTT: Because it is not determining the rights and

obligations of the parties. It is not In Re

Navigation Act judicial power, in that sense. And
there may be a question as to whether it is
incidental to the judicial power, but that is
another matter. But it is not the exercise of

judicial power. Judicial power would only be
exercised in the event of there being an appeal and then the rights and obligations of parties would be
determined.
It could hardly be a very happy description of

judicial power to use any of the descriptions that
have been written by any of the Justices of this
Court when they have sat down, whether before or
after 1984. They do not describe judicial power in
the sense that it is conventionally known. But as
I said, there may be a question as to whether it is
incidental to judicial power.
Now, in relation to that, we submit that it

cannot be incidental to judicial power because it

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29/8/91

is determining whether there will be an occasion
for the exercise of judicial power. There may
never be any. It is exercising an uncontrolled and
uncontrollable discretion as to whether or not a
litigant will have the right to appeal to this

Court. We would submit that the question of
whether, in given cases, there should be a right to
appeal to this Court, was given to the Parliament.

DAWSON J: But judicial power very often involves the

exercise of a discretion as to whether the parties
can go further. That is an aspect of many
interlocutory matters.

MR ELLICOTT: Yes. That is because there is judicial power

to which it is incidental. For instance, in an
appeal there is incidental judicial power, which
might be original jurisdiction - no need to argue
about that - to grant an injunction pending the
exercise of the appellate power. That would be
incidental. It may not determine the rights and
obligations but it keeps things in a proper state

in the interim. But that is incidental to judicial
power.

BRENNAN J: It is a curious proposition that an application

for an interim or interlocutory injunction is not
an exercise of judicial power in itself.

MR ELLICOTT:

I did not say that, Your Honour; I said it

was. It is an exercise of judicial power, but it
is also incidental to the exercise of the appellate
power where there is an appeal, and I use it to
simply say that it may be supported on both bases,
but it may be it is not supported by the original
jurisdiction. It might be a matter involving State
rights and you will not find it as a matter under
section 75 or 76. But I, needless to say, would
not argue that it was not incidental to the

exercise of the appellate power. Now, there may be
many instances of that; it may be security for

costs or whatever; all incidental, but they do not
determine the final rights of the parties in the
appeal. But that is because there is in existence
an appeal, but where there is nothing in existence
to which it can be an incident, then it is not an
exercise of the incidental power.
Now that means, in our submission, and

particularly where the whole question of whether or
not - and this is where the offence is, in our
submission - the appellate power will be exercised
by this Court or not is committed to this Court,
because that follows upon a proposition, which we
would submit is clear, namely, that the
jurisdiction of this Court to hear and determine
appeals in any matter is taken away completely.

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29/8/91

Until this Court then decides, in the exercise of
that very broad discretion, uncontrolled and
uncontrollable, to give special leave to appeal.
Now, in that sense, that only emphasizes that what
has happened is that there has been conferred on
this Court the function which was given to
Parliament to prescribe and they have given it to the Court. It is an abdication of legislative
power.
Now, I should not think I need to refer

Your Honours to Reg v Trade Practices Tribunal,
123 CLR 361. There are some helpful and well-known
passages in the judgment of Mr Justice Kitto, pages
373 to 378, and Mr Justice Walsh, pages 413 and
414. That, of course, involved the Trade Practices
Tribunal. The power to legislate or the quality of
legislation is that it lays down a rule, in a
sense, for the future. It may confer a right as
distinct from determining what the rights of

parties are. The Trade Practices Tribunal was
exercising non-judicial power, because it was
determining a question under some legislation as to
whether certain conduct, I think, was examinable,
but they acted in a judicial way in order to

determine it, but the distinction is drawn between
what is truly legislative power and judicial power.
Now, in the absence of the existence of

judicial power, in relation to a particular - if I
can call it a matter just for the sake of things,
in other words, where parties are seeking to appeal
from the supreme court of a State say - in the
absence of there being an appeal in relation to it,
then there cannot be an action which is incidental
to the exercise of that judicial power.
Seen in its true light, it is our submission

that you cannot construe section 35, whether you
look at it alone or, as you must, of course, in
connection with section 35A, with the matters to be

taken into account, as other than the conferring of
the broadest discretion possible without a duty to
exercise it and putting the Court in no different
position to the legislature.

In Giris v Commissioner of Taxation,

119 CLR 365, Your Honours will find again comments
and statements about the nature of the power which
the Commissioner of Taxation was exercising there
under sections 99 and 99A. But it is interesting -
not only interesting but illuminating - to analyse
why it was that they decided it was not legislative
power.
The reason was that although the commissioner

was given a very broad discretion, nevertheless he

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was under a duty to exercise it, and that was what

enabled the Court to say that. Now at 371,
Chief Justice Barwick, in the middle:
It will be observed as a matter of

verbiage thats 99A purports to bring to tax
the trust income which falls within its

prescriptions and to do so of its own force.
Verbally the Commissioner is given bys 99A an
authority or discretion in the nature of a
dispensing power if he thinks it unreasonable
to apply the section to the particular
taxpayer in respect to the particular year of
income. If he does not think it unreasonable
so to do, s 99 does not apply to the income of
the particular trust estate in respect of the
particular year of tax because, in default of
the Commissioner's opinion in the appropriate
sense, s 99A applies. It is possible to treat
s 99A in isolation and, regarding it
literally, not place the Commissioner under
any duty to decide pro or con as to the
reasonableness of applying that section to the
particular taxpayer in the particular year of
tax. In the Commissioner's silence the
section would apply. If that literal view
were taken then, of course, the invalidity of
giving the Commissioner an authority or
discretion to treat the section as not
applying to a taxpayer in a particular year of
tax would not in any wise assist the present
appellant. It would be left liable because of
the literal terms of s 99A .....
However, I am not prepared to treat the

section in isolation from s 99 and to give
literal effect to what after all is not much
more than a draftsman's device in allowing the
section to apply where the Commissioner has not
thought it was unreasonable for it so to do.

together and so read they do exhibit a cohesive In my opinion, the two sections must be read
scheme on the part of the legislature. In my
opinion, the operation of each of the sections
depends on the view of the Commissioner as to
the unreasonableness of applying the one rather
than the other ..... so read, in my opinion, a
duty is imposed on the Commissioner to decide
in each case and in respect of each year of
income whether it is unreasonable to apply s
99A rather than s 99.
Now, there are other statements in the

judgments of Sir Frank Kitto at pages 379 and 380,
and Mr Justice Menzies at page 381 and
Mr Justice Windeyer at page 384 point 8. But the
existence of a duty was very significant in that

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case. That clearly enough was regarded by this
Court as being on the borderline between a legislative and administrative power, and we would
submit that in essence what has happened here is
over the border. It is beyond there being no duty.
It is as if the Court was sitting as a parliament
but in relation to individual cases.
Although broad regulation-making powers have been conceded from time to time by the courts, by
no means are they without some restriction, and
without going to the cases, may I refer
Your Honours to Dignan's case, 46 CLR 73, 101, 119
and 120; and the Communist Party case, 83 CLR 1,
at page 257.
As we say in submission 22, the prescription

without defining what are the limits of the exceptions or regulations. Section 35A leaves the matter entirely at large provided the Court takes
of an exception or regulation cannot be left by
into account certain matters. It enables the Court
actually to chart its own course, and to select
whatever matters it likes provided it takes those
into account. That, we would say, is a failure to
define the limits of exceptions or regulations, and
therefore is pointing to invalidity. We then go on
to say that it is not judicial power, and I have
developed that to some extent, nor is it incidental
to the exercise of judicial power.
At the top of page 10 of our submissions we

say one answer to the argument that it is an
invalid conferring of non-judicial power is to
treat the High Court for the purposes of the

provisions as personae designatae. Now, that is

not our preferred submission. Our preferred
submission is that in truth this is invalid because
it is an abdication of legislative power. But if

it is not an abdication, and if it is not an
exercise of judicial power, then it is a conferring
of a duty - contrary to our other submission - on
the Court. That is, a duty to exercise it as
personae designatae.

I find that as not being what the Parliament could have intended.

I must say that to you, that
I am not really putting this forward as the
preferred submission. But it would be the
consequence, in our respectful submission, of the
rejection of the other submissions, and it is
unthinkable obviously that this Court should be

subject to now, for instance, section 39B, a
prohibition from the Federal Court. That is just
not right.

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On the other hand, if the Justices of the

Court who sit in three are personae designatae,
then within the Court the original jurisdiction
might be used as a basis for treating the bench of
three as officers of the Commonwealth, and
therefore one would have a prohibition to the Full
Court of the High Court to deal with them as the
case may be. But again, that is more the consequence of the rejection of the other
submissions, and it is not put in terrorem, but it
is a conclusion to which the Court would be slow to

come. But nevertheless it is there.
Our final submission is, on this part, in any

case a legislative provision conferring the power
to grant or refuse special leave in all cases on
the High Court Justices as personae designatae
would be invalid. If the Justices have a duty to
exercise the function, this would be contrary to
the Boilermakers case, so that would be the end of
it anyhow. There would never be a prohibition

because it would be invalid. If they do not have
such a duty, the provision could result in there
being no appeals to the High Court, contrary to the
intention of section 73, and we say this is
unthinkable.

DEANE J:

On this argument, would the last paragraph of

section 73 take you back to the State supreme
courts alone having power to grant leave to appeal?

MR ELLICOTT: Well, it may, Your Honour, but it is only

inferentially that it would.

DEANE J: But if all the provisions, right back to 1903 or

1901, allowing this Court to grant special leave as
a Court were an invalid conferral of non-judicial
power, you would probably end up at the last

paragraph. It had the the effect that the State
supreme courts, when they could grant leave to

appeal to the Privy Council, could grant leave.

MR ELLICOTT:

Your Honour, when I said inferentially I meant

that one view of that could be that you pick up the
State supreme courts, as Your Honour has put to me,
or alternatively, that you read it as if it applied
to the High Court, and that that is how, sensibly,

it ought to be read. In which event, those
conditions and restrictions would come across to
the High Court. But that would be the consequence.
Now, in relation to an appeal from the Federal

Court, if we be right, then one would go back to
the 1976 Act and our client, we would say - but
this is not necessary for the purposes of answering
the questions - would have a right of appeal.

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29/8/91

In relation to the matters raising the

questions in relation to Carson v Fairfax, then the
position could well be that the matter goes back,

depending on another question which is raised in an
objection to competency. It either goes back to
the leave of the High Court, if it is an
interlocutory matter under the objection to
competency, or it goes back as a matter of right
because it is in excess of 300 pounds, that being
the only limit which was below the 500 pounds
sterling. All the other limits were above, from
1955 onwards.
If, on the other hand, it was thought that

there was some power in Parliament to pass the laws in 1955 and 1976 then, obviously, they would apply. But there would be likewise a right of appeal or,
if interlocutory, the question of either leave or
special leave would arise. Prior to 1976 it was
leave; after 1976 it was special leave.
Now, the other question related to the seven

Justices and I have put already what I wanted to
put to the Court in relation to that matter.

DEANE J: Mr Ellicott, I am sorry, I did not quite follow

the argument in relation to seven Justices. Could
you take it a little more slowly for me?

MR ELLICOTT:

I certainly will, Your Honour.

If one goes to

section 35(2) or the equivalent Federal Court
provision, it provides:
an appeal shall not brought from a
judgment ..... unless the High Court gives
special leave to appeal.

The reference there is to the High Court. The High
Court, we say, because of what it has already said
is not exercising jurisdiction - that is, judicial
power; it is not exercising federal jurisdiction

in terms of the Judiciary Act, which is - - -
power?

DEANE J: This argument is dependent on the non-judicial

MR ELLICOTT: It is, yes.

DEANE J: That is what I did not follow.

MR ELLICOTT: So, if one goes back to that, it being an Act

to make provision for the exercise of the judicial

power of the Commonwealth. And that Act,
section 15 - that is the Judiciary Act - says:
The jurisdiction of the High Court may,
subject to the provisions of this Act, be

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29/8/91

exercised by any one or more Justices sitting
in open Court.

Presumably, it would seem that the High Court is
constituted as three, pursuant to that provision.
Now, if it is not exercising the judicial power
then you cannot rely on the Judiciary Act, the High
Court is then to be defined and the High Court is
established - when I say "established" is
controlled or regulated by the High Court of
Australia Act 1979 and section 5 provides:
The High Court is a superior court of record
and consists of the Chief Justice and six
other Justices appointed by the Governor-
General by commission -

ergo the High Court is the Chief Justice and six
Justices and there could be good reason for all of
them sitting on such a momentous matter as whether
a person who believes that they have suffered an
injustice below should get leave to appeal.
That is not a knock-out blow in the sense that

Parliament could not amend it. I am not suggesting
that. It is not a constitutional point. It is a

matter of interpretation. But our primary
submission is that Your Honours will find both
those sections invalid. If the Court pleases.

MASON CJ: Thank you, Mr Ellicott. The Court will take a

short adjournment in order to consider the course
it will take in this matter.

AT 3.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.16 PM:

MASON CJ:

The Court need not trouble other counsel for the

parties, nor counsel for the intervener.
The determination of the questions argued today has consequences for applications for special
leave to appeal presently pending in the Court. In
view of that circumstance, having come to a clear
and unanimous conclusion that the challenge to the validity of s. 35(2) of the Judiciary Act 1903 and
s. 33(3) of the Federal Court of Australia Act
1976, must fail, the Court considers that it is
appropriate to announce that conclusion now.

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29/8/91

Implicit in what I have said is a rejection o:

the submission that the jurisdiction to grant or
refuse special leave to appeal does not involve an
exercise of judicial power. It follows that the
argument last advanced by Mr Ellicott, QC must also fail. We leave the making of formal orders and the
delivery of reasons to a later date.
Mr Ellicott, the application for special leave

to appeal is listed for hearing today. Do you wish
to proceed with that this afternoon, or would you
prefer that it remain in abeyance until tomorrow
morning? My inquiry is directed not only to you,
but to other counsel in the application.

MR ELLICOTT:

Your Honour, I would prefer it to remain in

abeyance until tomorrow morning.

MASON CJ: Very well. If there is no objection to that

course from other counsel, that is the course the
Court will take. Is there any objection from other
counsel to that course?

MR JACKSON: If Your Honour pleases, we would seek to have

the matter proceed tomorrow morning.

MASON CJ: Seek to proceed tomorrow morning?

MR JACKSON:

Yes, well, we would seek to have the Court

require Mr Ellicott to proceed tomorrow morning.

MASON CJ:

Very well.

The Court will take the application

for special leave to appeal tomorrow morning at
10 o'clock. Yes, Mr Jackson.

MR JACKSON:

As to the other matters, because of the several

different proceedings that are involved, the
appropriate forms of order may differ. I wonder if the most appropriate course might not be if we were
to give to the Court and to our learned friends our
suggested version of the orders, Your Honours,

because there is a demurrer and then it is a
question of what happens to the action as well as
the demurrer.

MASON CJ:	I think that would be helpful.
MR JACKSON:	And then Your Honours might make appropriate orders as to costs.

MASON CJ:

Yes.

The Court will now adjourn until 10 o'clock

tomorrow in Canberra.

AT 3.19 PM THE MATTER WAS ADJOURNED SINE DIE

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[1991] HCATrans 228

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prevails right to the top.
It may be that in the course of that great
inconvenience may occur.	It may be that there are
a multiplicity of cases.	It may be that it is seen

there, and that right was going to be taken away to	them. That was their protection; their right to go
some extent if matters went to this Court and there was a great debate about that, but what replaced it
was the right to come to this Court.
Now it is perhaps ironic that today the individual litigant stands in relation to this
Court as the litigant stood in relation to the
Privy Council at the time that the Constitution
came into force. In other words, you can say, "Oh
well, it was the grace and favour of the sovereign in relation to the Privy Council, but now it is the grace and favour of this illustrious tribunal."
And when I say, "grace and favour" I do not mean
something derogatory. It is not something which

being an act of justice or in a justice system.	A
litigant can go away from this Court on a special
leave application feeling that injustice has been
done for the reasons I have already expressed and
these were, we would submit, matters that were

in and that was successful.	And that was to
protect the right of appeal.

go to the ultimate court in my country".	It is
just unthinkable but yet that is what happened.	It
happened overnight and now that right is in the
grace and favour of this Court.	And we would

the power to alleviate that exception to say,
"Well, we will not turn you away completely.	If
the Court thinks the matter is of sufficient

High Court authority.	And it asserts the finality
and conclusiveness of this Court's judgments.	But
it also says that this Court is the final court.

know and it perhaps is irrelevant to that.	And
those who would want to support the existing system

That is what it is.	Even if it is after leave it
is an appeal as of right.
There is a permissible argument which does not

about 3000 pounds in 1903;	I think it was around
about that.	And one might think that it ought to

pounds was just about it.	So what did they do,
they fixed it at 300.

Privy Council?", they said to themselves.	And if
it was 1000 pounds, so be it.	It was not doing any

does not mention rights from beginning to end.	A
right is what you have after the legislature has

expand the right of appeal; it cannot contract it,
in relation to appeals.	And that would include
criminal appeals.

I hope the amendment will not be accepted.	I
find that the words to which Mr Glynn takes exception are the words used in the United
States	Constitution .....

state legislation.	We are not trusting the
Federal Parliament.	We are really taking it

MR BARTON -Then I can follow that very well.	There is perhaps yet another difficulty. If
the honorable member wishes to carry out
entirely the meaning of this amendment it
might be wise to make it read ... Nothing in
this sub-section "or in any law passed thereunder" shall be construed to prevent the
High Court.
MR GLYNN - I have no objection to that
amendment.
MR BARTON - What my honorable friend wants to
prevent is the effect of any law cutting down
this appeal to the High Court from the Supreme
court of the State.

Court of a State in a proceeding arising under	the Conciliation and Arbitration Act or
arising under an order or award, if the matter
is one in which at the establishment of the
Commonwealth an appeal lay from the Supreme
Court to the Privy Council. For bys. 73 of
the Constitution it is provided that no exception or regulation -

the Act ..... It follows that sub-s (2) on its very terms cannot apply to such proceedings.	under ..... but do involve the interpretation of interpretation of the Act and of an award,
must therefore fall outside both sub-s (1) and
sub-s (2) of s 31.

between State and federal jurisdiction.	The
only basis that can be put forward for an
attempt to clothe a federal court with

Sub-section (3):	in a matter arising under this Act.
An appeal does not lie to the High Court from
a judgment, decree, order or sentence from
which an appeal may be brought to the Court
under sub-section (1) of this section.

decision, I think Attorney-General v T & G Mutual, Your Honours later, when we come to another	the Court in relation to the word "limitation" in
section 74 made some remarks about whether in the
course of limiting you get to the point where the whole purpose of the section or the jurisdiction was destroyed, and likewise, as I said earlier, we
would submit that the word "exception" has to be
looked at in the same way; that is to say, there
may come a point when there is so much exception
that the appellate jurisdiction of the Court is
destroyed:

time.	But it could not destroy such appeals
altogether.	The proviso ins. 73 of the

think it was in the 1950s.	Your Honour, can I just
check that?

various views were expressed.	At the foot of 624
the then Chief Justice said:

form.	A construction which would make the
validity of a law depend upon the ingenuity of
the legislature in this way would serve no
constitutional purpose and cannot have been
intended by the framers of the Constitution.
Now, Your Honours, we would submit the same

view that the framers of the Constitution did	not intend that it should affect any existing	right of appeal to the Privy Council from
those Supreme Courts. Of course, for those
existing rights to be affected, it would be
necessary to find in the Constitution an
indication that this was intended. There is
not the slightest indication of any such
intention.

we would submit, supreme optimism.	Towards the
top of page 115:

In the latter case, the matter must involve
questions of general public importance.	The
special nature of the application must be
maintained -

that argument.	I will come back to it but I shall
not have to deal with it at great length.	It is