Wilcox v Donohoe [1905] HCA 68; (1905) 3 CLR 83 (27 September 1905)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

27 September 1905

Griffith C.J., Barton and O'Connor JJ.

Blacket, for the respondent,

Armstrong, (with him Pitt), for the appellant.

Blacket in reply.

Griffith C.J.

The point taken by Mr. Blacket is an important one, and has been mooted once or twice already. It will, therefore, be just as well for us to give a definite statement of our opinion on the point now. This is in form an appeal from a decision of Pring J., sitting in Chambers. The case of Parkin v. James[1] decided that an appeal lies from him, as a Judge of the Supreme Court exercising the jurisdiction of the Supreme Court, to this Court. But that right is controlled by the Judiciary Act 1903. The Judge's decision is a decision of the Supreme Court exercising federal jurisdiction. Sec. 35 (1) provides that:?"The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgments whether given or pronounced in the exercise of federal jurisdiction or otherwise and to no others, namely:" Then paragraph (a) (1) prescribes the condition that the judgment must be one "given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of three hundred pounds: or" (2) "which involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of three hundred pounds; or (3) affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy or insolvency." This case does not fall within any of those categories. Then paragraph (b) provides for an appeal from:?"Any judgment, whether final or interlocutory, and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal" ; and (c) "any judgment of the Supreme Court of a State given or pronounced in the exercise of federal jurisdiction in a matter pending in the High Court." The result is that an appeal does not lie as of right from the Supreme Court of a State exercising federal jurisdiction any more than when it is exercising its ordinary jurisdiction. In any matter in which less than £300 is involved special leave to appeal must be obtained from this Court. The question is whether that section is controlled by sec. 39 which confers federal jurisdiction on State Courts, and provides, inter alia, sec. 39 (2) (b) that "whenever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court." Now, in one sense, this applies to the present case, because Pring J. was a Judge of a State, and an appeal lies from his decision to the Supreme Court of the State. But it is clear that the "Court or Judge" referred to means some Court or Judge other than the Supreme Court, and does not apply to the case of a Judge exercising the powers of the Supreme Court or to the Supreme Court otherwise constituted. Therefore paragraph (b) does not apply here, and there is no appeal from the decision in question except by special leave. Under these circumstances we are asked for special leave. If the matter had been a trivial one, very likely we should have refused to grant it. But as a matter of fact His Honor declined jurisdiction. It is clear also that the appellant was entitled to have his appeal heard, and to have it heard by Pring J., unless there was some statutory restriction. But the Judge having refused to entertain the appeal, the appellant is entitled to some redress. He was strictly entitled to appeal direct to this Court, but he adopted the more expeditious process of appeal by special case under the Justices Act 1902. Under these circumstances leave to appeal should be almost a matter of course. Otherwise the appellant loses the appeal given to him by the Constitution. We might content ourselves with declaring that Pring J. had jurisdiction to hear the matter, and remitting it to him with that expression of our opinion. Certainly we are bound either to hear the appeal ourselves or to remit it to the learned Judge.

It has become necessary to refer to the case of Ex parte Stelling[2] , upon which the decision of the learned Judge proceeded. The judgment in that case was founded upon sec. 38 (e) of the Judiciary Act 1903 which provides that the High Court shall have exclusive jurisdiction in "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal Court." The learned Judge appeared to have considered that the word "prohibition" was there used in such a sense as to include a form of appeal in New South Wales which goes by that name. But I have no doubt that in the Judiciary Act 1903 the writ of prohibition referred to is the prerogative writ by which the Superior Courts control inferior Courts from going beyond their jurisdiction, and does not include the writ which is called by that name in New South Wales, but which is in reality only a form of appeal. I therefore think that sec. 38 does not apply. The jurisdiction of Pring J. to hear the appeal was settled in the case of Ah Yick v. Lehmert[3] .

We think, therefore, that special leave to appeal is necessary, but that, under the circumstances, it is practically a matter of course to grant it. We therefore grant special leave.

Blacket submitted that, as special leave was necessary, security for costs should have been given by the appellant. The appellant should have taken this step before.

Griffith C.J.?This might be regarded as an application for a mandamus. The security would only be nominal, if it were ordered.

Appeal allowed with costs. Rule appealed from discharged. Rule Nisi made absolute to quash the conviction.

Solicitor, for the appellant, F. Y. Wilson.

Solicitor, for the respondent, The Crown Solicitor of New South Wales.

1. [1905] HCA 64; 2 C.L.R., 315.

2. (1904) 4 S.R. (N.S.W.), 201.

3. [1905] HCA 22; 2 C.L.R., 593.