Peacock v D M Osborne & Co [1907] HCA 42; (1907) 4 CLR 1564 (13 September 1907)

HIGH COURT OF AUSTRALIA

Peacock Plaintiff, Appellant; and D. M. Osborne & Co. and Another Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

13 September 1907

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

Coldham, for the appellant.

Irvine K.C., for the respondents.

Coldham, in reply,

The judgment of the Court was delivered by

Griffith C.J.

In March last this Court, on the hearing of an appeal from the Supreme Court of Victoria, gave judgment reversing the judgment appealed from—which was a judgment for the defendants in the action—and gave judgment for the plaintiff, granted an injunction, directed certain inquiries to be made as to damages, and remitted the matter to the Supreme Court to execute the judgment. Unfortunately an error occurred in drawing up the judgment of this Court so that it does not accurately express what the Court ordered. But the matter has been dealt with here on its merits, and irrespective of any defect in form. Later on an application was made to àBeckett J. to stay proceedings under the judgment as pronounced by this Court. His Honor with considerable doubt held that he had power to give such a stay, and he ordered that all proceedings in the Supreme Court in relation to the inquiry as to damages should be stayed until further order, and that the plaintiff should be at liberty to go on with some other matters. The ground taken before His Honor for asking for the stay was that special leave had been granted by the Privy Council to appeal from the judgment of this Court. This appeal is now brought from His Honor's order.

There is no doubt that the appeal lies. The order, although made by a Judge in Chambers, is an order of the Supreme Court, and disobedience of that order would be punished by proceedings for contempt of Court—the Court to which the contempt would be shown being the Supreme Court.

The ground of the present appeal is that, when a judgment is pronounced by this Court, it is the duty of the Supreme Court to obey, and not to make an order inconsistent with obedience. Sec. 37 of the Judiciary Act 1903 provides that:—"The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment." Now, there is no doubt that the Supreme Court has jurisdiction to make any order consequent on an order of this Court for the purpose of executing the latter order, but the Supreme Court has no power to make any order for the purpose of preventing its execution. When I say "power," I do not mean that in one sense the Supreme Court has no power to make an order, but, although technically the Supreme Court has power to make such an order, it is an order that ought not to be made. Just as an order made without hearing both parties is an order that ought not to be made, although it may be a just order. Quicunque aliquid statuerit, parte inauditâ alterâ, æquum licet statuerit, haud æquus fuerit. An order staying proceedings until further order is not an order in execution of a judgment of this Court, but is an order thwarting or obstructing the execution of that judgment. Therefore, whatever the merits may be, it is an order that ought not to be made, and must be set aside on appeal. To put it shortly, the judgment of this Court, when the case was remitted to the Supreme Court, is to be regarded on the same footing as a judgment of the Supreme Court from which no appeal has been or can be brought. Matters subsequent to the case being remitted are within the ordinary jurisdiction of the Supreme Court. But that Court has no authority, though it may have formal power, to make any order inconsistent with the order of this Court. The appeal, therefore, must be allowed.

I think it right to say that àBeckett J. was probably misled by the form in which the order of this Court was drawn up. I think that appears from his reasons for his judgment. The appeal will be allowed, and the order appealed from will be discharged.

I may add that it is desirable that the judgment of this Court as drawn up should be amended.

Appeal allowed. Order appealed from discharged. Respondents to pay costs of appeal.

Solicitors, for appellant, Waters & Crespin, Melbourne.

Solicitors, for respondents, Blake & Riggall, Melbourne.