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Southern Centre of Theosophy Inc v South Australia [1979] HCA 59; (1979) 145 CLR 246 (22 November 1979)

CATCHWORDS

HEARING

DECISION

2. My brother Gibbs, in his reasons for judgment which I have had the advantage of reading, deals with these arguments in precise detail. I agree entirely with what he has written. (at p252)

3. In China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172, at pp 181-187 , I have dealt with an argument put by the then Solicitor-General for South Australia that, upon the proclamation of the Commonwealth of Australia, all legislative power of the Imperial Parliament with respect to the State of South Australia had lapsed and that no Imperial law continued to operate in South Australia after that proclamation. I found it impossible to accept that argument. (at p252)

4. The argument in the present case, whilst more detailed, is basically grounded upon the same notions as prompted the former argument. My brother Gibbs, as I have said, demonstrates with particularity the unacceptability of its various phases. For my part, I think that it lacks all substance and departs from that essential legalism with which legal problems have necessarily to be approached. (at p252)

5. I agree with the orders which my brother Gibbs proposes. (at p252)

GIBBS J. On 17th April 1975 the Southern Centre of Theosophy Incorporated ("the appellant"), as plaintiff, commenced an action in the Supreme Court of South Australia against the State of South Australia as defendant. The appellant's claim was for declarations and an injunction and the relief sought related to land lying wholly within South Australia. The questions in issue in the action appear to have been what was the eastern boundary of certain land comprised in a Crown lease and whether an area of accretions adjoining a lake formed part of that land. It is clear that no exercise of federal jurisdiction was involved. The action came before Walters J. who gave judgment for the appellant. An appeal was brought to the Full Court of the Supreme Court which, on 29th May 1979, allowed the appeal and set aside the order of Walters J., and, on 30th May 1979, made an order as to the costs of the proceedings. On 19th June 1979 the appellant gave notice of motion for an order that it be granted leave to appeal to Her Majesty in Council from the judgment of the Full Court of the Supreme Court. The motion was supported by evidence designed to show that the matter in dispute on the appeal amounted to or was of the value of 500 pounds sterling or upwards, or that the appeal involved, directly or indirectly, a claim or question to or respecting property or some civil right amounting to or of the value of 500 pounds sterling or upwards. When the motion came on for hearing before the Full Court of the Supreme Court, the Solicitor-General for the State of South Australia contended that no appeal lies to the Privy Council from decisions of the Supreme Court of that State. The Court adjourned the motion to give the Solicitor-General an opportunity to seek the removal of the matter into this Court. The Solicitor-General made application accordingly in matter no. 12 of 1979. Subsequently, the State commenced an action in this Court against the appellant (matter no. 14 of 1979) seeking declarations, inter alia, that the Supreme Court of South Australia has no power to grant leave to appeal to Her Majesty in Council from the judgment in question, and that the motion for leave to appeal was not competent. The appellant, by its defence, admitted the allegations in the statement of claim, but denied that the State of South Australia is entitled to the declarations sought. That matter has been referred to the Full Court to be heard together with matter no. 12 of 1979, and in the last-mentioned matter an order was made removing the proceedings in the Supreme Court into this Court. (at p253)

2. It was not contended that the case fell outside the terms of par. 2 (a) of the Imperial Order in Council of 15th February 1909 by which appeals to Her Majesty in Council from the State of South Australia are regulated. The argument advanced on behalf of the State of South Australia was much more far-reaching. It was that the right of Her Majesty in Council to entertain appeals depends on the prerogative, and that such prerogative right could only exist while South Australia was in a position of subordination to, or dependence on, the United Kingdom, a condition which, it is said, no longer exists. This argument, in essence, is the same as that which was advanced in relation to Ceylon, after that country had attained independence, and rejected in Ibralebbe v. The Queen (1964) AC 900 . It was further submitted that the Constitution itself, and certain recent statutes of the Commonwealth Parliament, are inconsistent with the continued existence of appeals to the Privy Council. In fact, of course, appeals from the Supreme Courts of the States, including South Australia, have been entertained by the Privy Council from Federation until the present time, and their Lordships have never cast any doubt on their jurisdiction to entertain them. It is also, I think, true to say that every one of our predecessors on this Bench has recognized the continuing authority of the Judicial Committee of the Privy Council in matters of general law and its jurisdiction to entertain appeals from State courts, and the recent discussion in Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88 of the question what State courts should do in the event of conflict between a decision of the Privy Council and a decision of this Court would be meaningless if the Privy Council no longer formed part of the appellate system of the Australian States. However, it is no doubt possible that the law Lords who have sat on the Judicial Committee and our own predecessors have laboured under a common error, or that the legal position has recently changed, and I therefore turn to consider the arguments advanced by the learned Solicitor-General of South Australia. (at p254)

3. As a preliminary to his argument that the prerogative has been abrogated, the Solicitor-General submitted that the Order in Council of 15th February 1909 had no legal efficacy in relation to South Australia. This submission was put in a number of ways. First, it was said that the jurisdiction of the Privy Council depends on the prerogative, and that the Judicial Committee Act, 1844 (Imp.) ("the Act of 1844"), under which the Order in Council was made, does no more than regulate the appeals heard by virtue of the prerogative. Next, it was argued that the Act only applies to "any British Colony or Possession abroad", and that, since Federation, or at least nowadays, South Australia has ceased to answer to that description so that the Act no longer has any application to that State. Finally, it was contended that in any case the Order in Council of 15th February 1909 was not authorized by the provisions of the Act of 1844. (at p254)

4. The preamble, and the first section, of the Act of 1844, at the time of its enactment, read as follows:
"'WHEREAS the Act passed in the Fourth Year of the Reign of His late Majesty, intituled An Act for the better Administration of Justice in His Majesty's Privy Council, hath been found beneficial to the due Administration of Justice: And whereas another Act, passed in the Sixth Year of the said Reign, intituled An Act to amend the Law touching Letters Patent for Inventions, hath been also found advantageous to Inventors and to the Public: And whereas the Judicial Committee acting under the Authority of the said Acts hath been found to answer well the Purposes for which it was so established by Parliament, but it is found necessary to improve its Proceedings in some respects, for the better Despatch of Business, and expedient also to extend its Jurisdiction and Powers: And whereas by the Laws now in force in certain of Her Majesty's Colonies and Possessions abroad no Appeals can be brought to Her Majesty in Council for the Reversal of the Judgments, Sentences, Decrees, and Orders of any Courts of Justice within such Colonies, save only of the Courts of Error or Courts of Appeal within the same, and it is expedient that Her Majesty in Council should be authorized to provide for the Admission of Appeals from other Courts of Justice within such Colonies or Possessions'; Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That it shall be competent to Her Majesty, by any Order or Orders to be from Time to Time for that Purpose made with the Advice of Her Privy Council, to provide for the Admission of any Appeal or Appeals to Her Majesty in Council from any Judgments, Sentences, Decrees, or Orders of any Court of Justice within any British Colony or Possession abroad, although such Court shall not be a Court of Errors or a Court of Appeal within such Colony or Possession; and it shall also be competent to Her Majesty, by any such Order or Orders as aforesaid, to make all such Provisions as to Her Majesty in Council shall seem meet for the instituting and prosecuting any such Appeals, and for carrying into effect any such Decisions or Sentences as Her Majesty in Council shall pronounce thereon: Provided always, that it shall be competent to Her Majesty in Council to revoke, alter, and amend any such Order or Orders as aforesaid as to Her Majesty in Council shall seem meet: Provided also, that any such Order as aforesaid may be either general and extending to all Appeals to be brought from any such Court of Justice as aforesaid, or special and extending only to any Appeal to be brought in any particular Case: Provided also, that every such general Order in Council as aforesaid shall be published in the London Gazette within One Calendar Month next after the making thereof: Provided also, that nothing herein contained shall be construed to extend to take away or diminish any Power now by Law vested in Her Majesty for regulating Appeals to Her Majesty in Council from the Judgments, Sentences, Decrees, or Orders of any Courts of Justice within any of Her Majesty's Colonies or Possessions abroad."
By the Statute Law Revision Act, 1891 (Imp.), the preamble and the opening words of s. 1 to "same that" were repealed. (at p255)

5. There is no doubt that the jurisdiction of the Privy Council originally depended on the prerogative, but in some cases a statutory jurisdiction has been acquired. To say that the appeals were regulated by the Judicial Committee Act, 1833 (Imp.) or the Act of 1844 is not to deny to those enactments the ordinary force which any statute has. Thos statutes "give legislative sanction to the jurisdiction which had previously existed"; they "established and confirmed" the right of appeal: Nadan v. The King (1926) AC 482, at p 492 . As I pointed out in The Commonwealth v. Queensland [1975] HCA 43; ; (1975) 134 CLR 298, at p 311 , one ground on which the decision in Nadan v. The King rested - a ground that I found "readily understandable" - was that a Canadian provision purporting to abolish appeals in criminal cases was repugnant to the Judicial Committee Acts, 1833 and 1844, and was void. In Ibralebbe v. The Queen their Lordships explained the effects of those statutes in this way (1964) AC, at p 921 :
"The Judicial Committee Acts applied, when enacted, to all parts of the Sovereign's overseas territories covered by the enacting words and remain part of the law of such territories until validly repealed. That, indeed, was the reason why, before the Statute of Westminster, the Parliament of Canada could not, of its own authority, abolish criminal appeals from Canada, owing to the bar imposed by the Colonial Laws Validity Act" . . . "and why, on the other hand, after the Statute of Westminster, the Parliament of Canada had power to do just that thing, first with regard to criminal appeals . . . and, later, with regard to appeals generally."
Although the Judicial Committee Acts did not limit or restrict the prerogative, and the Privy Council might still allow appeals to be brought by special leave, notwithstanding that they could not be brought as of right under the provisions of the Act of 1844 or an Order in Council thereunder, it could no longer be said, once those Acts had been passed, that, if the prerogative were somehow lost, but the statutes remained in force, the Privy Council would cease to have jurisdiction. On those hypotheses, the jurisdiction would be based on the statutes. It follows that the main argument for the State of South Australia can be of no avail if the Act of 1844 is still in force in relation to South Australia, and if the Order in Council of 15th February 1909 is validly made thereunder. (at p256)

6. When the Province of South Australia was formed, it was undoubtedly a "British Colony or Possession" within the meaning of the Act of 1844. That Act then became part of the law of South Australia. It will remain part of that law until it is validly repealed. The Order in Council of 15th February 1909, if made within the power conferred by that Act, also became part of the law of South Australia, and will remain such until validly repealed. The fact that there has since been a change in the political or constitutional relationship between the United Kingdom and South Australia does not cause part of the existing law of South Australia to disappear, or established institutions, forming part of the State's judicial structure, to dissolve. I need not repeat what I have already said in China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172 at pp 194-195 on this subject. In other words, even if South Australia were no longer a British colony or possession within the meaning of the Act of 1844, that Act, having become part of the law of that State, would not for that reason alone cease to be part of that law. (at p257)

7. It is therefore unnecessary to discuss at length the present status of South Australia. It is perhaps enough to mention that s. 11 of the Statute of Westminster, 1931 (Imp.), which provides that the expression "colony" in any Act of the United Kingdom passed after the commencement of that Act shall not include a Dominion or any State forming part of a Dominion, makes no similar provision for the construction of Acts passed before that Act; that the provisions of s. 2 of that Act, which rendered the Colonial Laws Validity Act, 1865 (Imp.) inapplicable to any law made thereafter by the Parliament of a Dominion, were deliberately not extended to the States of Australia, although they were by s. 7 extended to the Provinces of Canada; and that Australia has been held to be a "British possession", both for the purposes of the Fugitive Offenders Act, 1881 (Imp.) (see McArthur v. Williams (1936) 55 CLR 324 , and for the purposes of the Colonial Courts of Admiralty Act, 1890 (Imp.) (see McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [1945] HCA 11; (1945) 70 CLR 175 ). And if it is necessary to consider historical developments, it is abundantly clear that South Australia was still both a British colony and a British possession in 1910, when the Order in Council was made. It appears from the joint judgment of Isaacs and Rich JJ. in The Commonwealth v. The Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69, at pp 105-106 that at the Colonial (or Imperial) Conference of 1907, as a result of which a model form of Order in Council was prepared, the Commonwealth and the States were all treated as colonies. It was not until the passing of the Statute of Westminster Adoption Act 1942 (Cth) that the Commonwealth itself finally cast off its colonial status, and even then, within the meaning of earlier Imperial statutes, it remained a "British possession". (at p257)

8. The final point taken by the Solicitor-General in relation to the Act of 1844 was that the words "for that Purpose" in the first section limit the purposes for which the Order in Council can be made to those stated in the concluding words of the preamble, so that the Order in Council can validly provide for the admission of appeals only from courts which are not courts of error or courts of appeal. Of course, this argument neglects the fact that the preamble sets forth other purposes as well - in particular, the improvement of proceedings and the extension of the jurisdiction and powers of the Judicial Committee. In any case, although a preamble to a statute may be an aid to interpretation in the event of ambiguity, it cannot be used to cut down the meaning of enacting words which are plain and unambiguous. The words of s. 1 in my opinion unambiguously state that an Order in Council may provide for the admission of appeals from a judgment of any court within any colony, although it is not a court of error or court of appeal. The natural meaning of those words is that the Order in Council may allow appeals from all judgments whether given at first instance or on appeal. Indeed, it would be absurd to impute to Parliament the intention that an Order in Council could only provide for appeals from judgments at first instance, thus making it necessary that appeals from the courts of any colony should be governed by two different Orders in Council - one relating to appeals from judgments of the court of appeal, and another relating to appeals from judgments at first instance. (at p258)

9. For these reasons, if the prerogative right to entertain appeals has somehow withered away, the Act of 1844, and the Order in Council made thereunder on 15th February 1909, remain and give a right of appeal to the Privy Council from any judgment of the Full Court of the Supreme Court of South Australia that satisfies par. 2 (a) of that Order in Council. (at p258)

10. However, the argument that the changes in the relations between Australia and the United Kingdom have caused the prerogative right to disappear misconceives the nature of an appeal to the Judicial Committee. That argument was presented on the footing that the allowance or disallowance of an appeal was an exercise of executive power by Her Majesty in Council and that Her Majesty, acting on the advice of her United Kingdom advisers, could decide the fate of an appeal no matter what the members of the Judicial Committee who sat on the case might advise. It was not suggested that there has in fact been any case in which a judgment of the Judicial Committee was disregarded in this way, and there is, in my opinion, not even a theoretical possibility that such a thing could occur. As Professor Dicey pointed out in a book entitled, The Privy Council, written as long ago as 1860, the Judicial Committee Act 1833 "produced the same effect on the Council's legal authority which custom has had in its political powers": see Ibralebbe v. The Queen (1964) AC, at pp 919-921 , where that and other authorities are cited, and see also The Commonwealth v. Queensland (1975) 134 CLR, at pp 309-310 . The Judicial Committee of the Privy Council is a judicial body - it is a court which forms part of the judicial structure of South Australia, and of course of the other Australian States. It is erroneous to suppose that the continued existence of the jurisdiction of the Privy Council in relation to South Australia depends upon the continued prerogative of Her Majesty to act in executive matters in relation to South Australia on the advice of other than Australian advisers. It is equally erroneous to suppose that the continuance of the appeal implies that South Australia remains in a position of colonial subserviency to the United Kingdom. Appeals at present lie to the Judicial Committee from Malaysia, which has its own King, and Singapore, which is a republic. (at p259)

11. The law of South Australia not only confers jurisdiction on the Privy Council to entertain appeals - it gives a right of appeal to the litigant whose case falls within the Order in Council. As their Lordships said in Ibralebbe v. The Queen (1964) AC, at p 919 :
"When it is propounded that the prerogative right of Her Majesty to entertain appeals, or alternatively criminal appeals, from Ceylon was terminated by independence, it needs to be remembered that what must also have been determined was the pre-existing right of every inhabitant of Ceylon to invoke that appeal, if he could show that it was warranted by his situation."
It perhaps hardly needs to be added that the reference to "leave" in the Order in Council does not imply a discretion, and an appeal lies as of right in cases which come within par. 2 (a) of the Order in Council, provided of course that the appellant complies with any conditions imposed by the court under the Order in Council: cf. Lopes v. Valliappa Chettiar (1968) AC 887, at p 894 . (at p259)

12. 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 Jacobs J. in Viro v. The Queen where his Honour said (1978) 141 CLR, at p 442 : "The Constitution being silent on the prerogative to receive appeals from the Supreme Courts of the States it has throughout the years been accepted that there remained intact the Royal Prerogative to allow an appeal to the Council from the Supreme Court of a State." With all respect, the statement that the Constitution is silent on the prerogative to receive appeals from the Supreme Courts of the States is not quite correct, for the concluding paragraph of s. 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. All that the Australian statesmen who wished this Court to be the final court of appeal for Australia were able to achieve when the terms of the Constitution were finally approved is contained in s. 74. (at p260)

13. I may deal briefly with the argument that the enactment of the Privy Council (Limitation of Appeals) Act 1968 (Cth) and of the Privy Council (Appeals from the High Court) Act 1975 (Cth) in some way brought an end to appeals from the Supreme Courts of the States. Those statutes deal only with appeals from this Court. They have nothing to do with appeals from the Supreme Courts of the States to the Privy Council. That question is dealt with by s. 39 (2) (a) of the Judiciary Act, whose provisions have been upheld as valid by this Court: see the cases cited in McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR, at p 209 . That section, however, deals only with appeals in matters in which the Supreme Courts are exercising federal jurisdiction. (at p260)

14. It does not follow from the fact that no appeal can now be brought from any decision of this Court to the Privy Council (except, theoretically, if a certificate under s. 74 has been given in a matter involving an inter se question) that no appeal can be brought from the Supreme Court to the Privy Council. There is simply no reason in law or in logic for drawing that conclusion. It may indeed be thought anomalous and inconvenient that there should be two ultimate courts of appeal from the Supreme Courts, and that the unsuccessful litigant should be able to choose his court of last resort. The possible difficulties and complications were discussed in Viro v. The Queen [1978] HCA 9; [1978] HCA 9; (1978) 141 CLR 88 . 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. (at p261)

15. Finally, reliance was placed on the Royal Style and Titles Act 1973 (Cth) by which the assent of the Parliament was given to the adoption by Her Majesty for use in relation to Australia and its territories, of the following style and titles: "Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth." It is right to say that this alteration in Her Majesty's style and titles was a formal recognition of the changes that had occured in the constitutional relations between the United Kingdom and Australia. For reasons already given those changes had no effect whatever on that part of the law of South Australia which confers a right of appeal to the Privy Council. The changes occurred as the result of an orderly development - not as the result of a revolution. (at p261)

16. For the reasons I have given, I hold that the Judicial Committee Act 1844 and the Order in Council of 15th February 1909, remain in force in relation to South Australia, and that appeals may be brought to the Privy Council from a decision of the Supreme Court of that State in any matter, not involving the exercise of federal jurisdiction, which satisfies par. 2 (a) of the Order in Council. (at p261)

17. I would dismiss matter no. 14 of 1979 and would remit matter no. 12 of 1979 to the Supreme Court of South Australia to enable that Court to hear and determine the application for leave to appeal to the Judicial Committee. I would order the State of South Australia to pay the costs of both proceedings. (at p261)

STEPHEN J. Having had the advantage of reading the judgment of Gibbs J., I find myself in agreement with all that is said in it. There is nothing that I wish to add to it. (at p261)

MASON J. I am in agreement with the judgment prepared by Gibbs J. (at p261)

2. I would therefore dismiss matter no. 14 of 1979 and would remit matter no. 12 of 1979 to the Supreme Court of South Australia to enable that Court to hear and determine the application for leave to appeal to the Judicial Committee. I would order the State of South Australia to pay the costs of both proceedings. (at p261)

MURPHY J. The question is whether an appeal lies to the Privy Council from the Supreme Court of South Australia. Such appeals have been excluded in cases where a Supreme Court was exercising federal jurisdiction (see s. 39 (2) of the Judiciary Act 1903 (Cth), as amended). (at p262)

2. Leaving aside federal jurisdiction, I adhere to the view which I expressed in The Commonwealth v. Queensland [1975] HCA 43; (1975) 134 CLR 298 and Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88 , that the continuance of appeals to the Privy Council from any court in Australia is no longer compatible with the Australian Constitution and the laws made by the Australian Parliament. The effect, under s. 74 of the Constitution, of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975 is that all appeals to the Privy Council from the High Court and other federal courts have ended. (at p262)

3. Section 74 provides:
"No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State of States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure." (at p262)

4. The intention of s. 74, although not spelt out in the Constitution, became clear in regard to inter se questions. As there was no appeal on such questions from the High Court to the Privy Council (without the certificate of the High Court), the Privy Council was not, except with such certificate, to pronounce upon these questions, however arising. In the early part of this century, a controversy arose about whether Parliament could exclude appeals to the Privy Council from Supreme Court judgments made in the exercise of federal jurisdiction (see s. 39 (2) of the Judiciary Act). The validity of that exclusion was denied by the Privy Council (see Webb v. Outtrim (1906) 4 CLR 356 and asserted by the High Court (see Flint v. Webb [1907] HCA 77; (1907) 4 CLR 1178 ; Commissioners of Taxation (N.S.W.) v. Baxter [1907] HCA 76; (1907) 4 CLR 1087 ; Lorenzo v. Carey [1921] HCA 58; (1921) 29 CLR 243 ). The High Court's view prevailed, although the Privy Council has often (without jurisdiction) heard appeals from Supreme Courts which were exercising federal jurisdiction. This has not been primarily the fault of the Privy Council. In Felton v. Mulligan [1971] HCA 39; (1971) 124 CLR 367, at p 412 Walsh J. observed that leave to appeal to the Privy Council had been granted by the Supreme Court in a considerable number of cases, contrary to the provisions of s. 39 (2) of the Judiciary Act; the question that the Supreme Court decisions were an exercise of federal jurisdiction was not raised (1971) 124 CLR, at p 413 . The Privy Council now seems to have accepted that the intention of s. 74 was to prevent the Privy Council's hearing appeals on inter se questions and that the High Court was the final arbiter unless it gave a certificate. In Dennis Hotels Pty. Ltd. v. Victoria [1960] HCA 10; [1960] HCA 10; (1960) 104 CLR 529 at pp 625-626; (1962) AC 25, at pp 50-51 the Privy Council said:
". . . it has always been recognized that the general purpose of the agreement enacted in s. 74 is to reserve for the final decision of the High Court in Australia, unless the Court itself wishes to refer the matter to the Judicial Committee, 'questions which arise in connexion with the federal distribution of power between the Commonwealth on the one hand and the States on the other' (Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p. 757). The clear intention of s. 74, as was said by Isaacs J., in Pirrie v. McFarlane [1925] HCA 30; (1925) 36 CLR 170, at p 196 is that 'on the purely Australian question of the distribution of the totality of governmental powers on this continent, the High Court of Australia - the highest judicial organ created by the Australian people - was to be the final arbiter, unless it voluntarily requested the intervention of the Sovereign in Council.'" (at p263)

5. If that is accepted as the purpose of s. 74, it follows that s. 74 itself (that is, without the support of s. 39 of the Judiciary Act) operates to prevent any appeal to the Privy Council from any other Australian court on an inter se question; otherwise its purpose would be frustrated. (at p263)

6. By similar reasoning, the last sentence of s. 74 provided a means for Parliament to achieve the same result in regard to any other class of questions, by limiting the matters in which special leave may be asked. Such limiting legislation would not only exclude appeals from the High Court to the Privy Council, but would achieve the corollary of excluding appeals from any other court to the Privy Council on those matters. The power to limit the matters in which special leave may be asked authorized the complete abolition of appeals (see Attorney-General (Cth) v. T. & G. Mutual Life Society Ltd. [1978] HCA 24; [1978] HCA 24; (1978) 144 CLR 161 ). Thus, all questions could be excluded, along with all matters. The certificate provision is a dead letter. The Privy Council (Limitation of Appeals) Act and the Privy Council (Appeals from the High Court) Act which were enacted under s. 74, abolish appeals in all matters from the High Court to the Privy Council. I leave aside the provision for residual proceedings which had already been commenced in a court. (at p264)

7. The operation of s. 74 is such that the abolition of all appeals to the Privy Council from High Court decisions on appeal from State Supreme Courts was accompanied by the entire exclusion of all possible appeals from State Supreme Courts to the Privy Council. Section 73 of the Constitution ensures that the High Court has jurisdiction to hear appeals from State Supreme Courts in any class of appeal in which the Privy Council had jurisdiction to hear such appeals directly from State Supreme Courts. Therefore, the effect of ss. 73 and 74 is that (after the two Acts) there could be no remaining class of appeal from Supreme Courts to the Privy Council. (at p264)

8. Thus, the Constitution has at all times provided for one final court on any question. On inter se questions, the High Court was always the final court (except when it granted a certificate). Apart from inter se questions, until Parliament passed limiting legislation excluding appeals in certain matters, the Privy Council was the final court on those matters. When appeals from the High Court were excluded in every class of matter, the corollary was that the High Court became the final court on every matter. Such a construction avoids the absurdity and inconvenience of two final courts. (at p264)

9. In matter no. 12 of 1979, the application for leave to appeal to the Queen in Council should be refused. (at p264)

10. In matter no. 14 of 1979, it should be declared that the Supreme Court of South Australia has no power to grant leave to appeal to the Queen in Council from the judgment in question, and that the motion for leave to appeal was not competent. (at p264)

AICKIN J. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I am in complete agreement with what he has said and the order which he proposes. I would add only that the reasons for judgment of my brother Stephen in China Ocean Shipping Co. v. State of South Australia [1979] HCA 57; (1979) 145 CLR 172, at pp 207-216 also deal fully with the reasons for rejecting the argument on behalf of that State in the present case. (at p265)

WILSON J. I have had the advantage of reading the reasons prepared by Gibbs J. I agree with them and with the order he proposes. (at p265)

ORDER

The cause removed in matter no. 12 of 1979 remitted to the Supreme Court of South Australia to enable that Court to hear and determine the application for leave to appeal to the Judicial Committee.

Order that the State of South Australia pay the costs of both proceedings in this Court.