Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97 (27 August 1906)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

27 August 1906

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

Shand K.C. (with him Garland), for the respondent,

Knox K.C., for the appellants,

The judgment of the Court was delivered by Griffith C.J.

Griffith C.J.

Barton and O'Connor JJ.

We do not think that the decision in Musgrove v. McDonald[1] covers the present case. That turned entirely on the Constitution. The Judiciary Act 1903 defines the word "appeal," as used in that Act, as including "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge." Section 39 is the section under which the Supreme Court in this case exercised jurisdiction. In passing that section Parliament assumed to act under sec. 77 of the Constitution, which authorized Parliament to make laws investing any Court of a State with federal jurisdiction, and defining the extent to which the jurisdiction of any federal Court shall be exclusive of that which belongs to or is vested in any Courts of the States. By sec. 39 the legislature conferred upon State Courts power to exercise this particular branch of federal jurisdiction, subject to certain conditions. One of those conditions is, for the purpose of the present case, (reading the word appeal in the sense of the definition), that the decision "shall be final and conclusive except so far as an application for a new trial may be brought to the High Court:" Sec. 39 (2) (a). In the same Act we find careful provisions for the making of such appeals and for the Constitution of the High Court before which they come. By the High Court Procedure Act 1903, which was passed at the same time, careful provision is made for regulating the procedure in such applications. Under these circumstances we are of opinion that the High Court has power to make an order directing a new trial, after a verdict of a jury in the Supreme Court exercising this delegated federal jurisdiction under sec. 39 of the Judiciary Act 1903.

Motion dismissed with costs.

Solicitor, for the plaintiff, Mark Mitchell.

Solicitors, for the Commonwealth, Macnamara & Smith for the Crown Solicitor for the Commonwealth.

1. [1905] HCA 50; 3 C.L.R., 132.