Flint v Webb [1907] HCA 77; (1907) 4 CLR 1178 (8 June 1907)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from a Court of Petty Sessions of Victoria.

8 June 1907

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

Mitchell K.C. (with him Joseph), for the appellant.

Irvine K.C. and Pigott (Harrison Moore and Levinson with them), for the respondent.

Mitchell K.C. in reply.

Griffith C.J.

In my opinion the motion made for a certificate in this case should be refused. The reasons for coming to that conclusion are apparent in the judgment I delivered yesterday from this Bench, and I will not occupy time by referring to them again. I will only say a word with reference to the argument used by Mr. Irvine as to what he called the "intolerable position" existing because of there being conflicting judgments of this Court and the Privy Council on the same subject. I do not think the position is intolerable. I do not think that is the correct epithet. It may be called an inconvenient position. But, whatever it is called, he says the strong reason why a certificate should be granted is that there is no other way of escape from that position. If it were true that there is no way of escape from that position unless we give a certificate, still, in the public interest and for the future welfare of the Commonwealth, I think it would be better that the position should continue, however inconvenient, than that escape should be made from it in that manner.

But it is not correct to say that there is no other way of escape. There are two ways of escape, quite easy and both open. One is the exercise by the federal Parliament of its power under sec. 77 (II.) of the Constitution, which can be done in various ways. One way would be by making the appellate jurisdiction of this Court exclusive of the appellate jurisdiction of the State Supreme Courts in some or all of the matters which together are called federal jurisdiction. They may exercise that power in full or limit it to any class of those matters. The other way in which the inconvenience can be remedied is one which was pointed out in the judgment of the majority of this Court delivered yesterday. The federal Parliament can, if it pleases, make its grants to its servants subject to the right of the States to tax them. As was then pointed out quilibet potest renunciare juri pro se introducto. This argument, which is the only novel one in addition to those used in Deakin v. Webb[1] , therefore fails, and I think the certificate should be refused.

Barton J.

On a similar application in the case of Deakin v. Webb[2] I joined in the unanimous opinion of the Court as then constituted that no certificate should in that case be granted. In concurring in the judgment of the Court in the present case I have nothing to add to what I then said except that I cannot see in what way the reasons then advanced in support of the application, and which seemed to the Court to be insufficient, have been strengthened, and I think nothing has happened in the meantime to strengthen them, but rather that they have been weakened. Therefore I think the certificate should be refused.

O'Connor J.

I am of the same opinion. Circumstances might arise which would make it right in the public interests that the final interpretation of the Constitution on some question involving the constitutional powers inter se of the Commonwealth and a State or of State and State should be left to the Privy Council. When those circumstances arise they will be considered. They have not arisen in this case. The question which has been argued so long and so strenuously before us is merely a question of what are the limits of the constitutional powers of the Commonwealth and the States under their respective Constitutions in a matter which concerns only the people of Australia. Mr. Irvine has urged that the fact that there is a conflict as to the interpretation of the same constitutional document between the Privy Council and this Court is a circumstance which ought to weigh with us in determining that the question involved ought to be decided by the Privy Council. That conflict arises from the condition of the law, and it is for the legislature, and not for this Court, to bring it to an end. All possibility of conflict could be removed by the legislature if the Parliament of the Commonwealth exercised its rights under the Constitution, as has already been suggested during the argument, but I can give no countenance to the doctrine that it should be determined by sending this case to the Privy Council in order that an interpretation may be put upon the Constitution, which I believe to be contrary to its spirit and to its letter, and which would render the working out of the daily relations of State and Commonwealth under its provisions impossible. To take the course suggested would be to depart from the duty which the Constitution has placed upon this Court. In determining a similar application in Deakin v. Webb[3] I said:?"The will of the people as represented in the Constitution is that we, and we alone, shall have the responsibility of determining the cases under sec. 74 which ought to be finally decided by us, and the cases which ought to be decided finally by the Privy Council. In that sense we have been made, not only the interpreters, but the guardians of the Constitution. That is to say, the duty has been placed upon us, not only to see that we interpret the Constitution according to our best judgment, but to take care, also, that, except under very exceptional circumstances, we do not allow the interpretation to fall into any other hands. So strongly do I feel that that duty has been cast on myself as a member of this Court, that I have no hesitation in saying, if we found that by a current of authority in England, it was likely that, should a case go to the Privy Council, some fundamental principle involved was likely to be decided in a manner contrary to the true intent of the Constitution as we believed it to be, it would be our duty not to allow the case to go to the Privy Council, and thus to save this Constitution from the risk of what we would consider a misinterpretation of its fundamental principles." What has happened since has to my mind strengthened that view. The decision of the Privy Council in Webb v. Outtrim[4] has made it clear that the interpretation placed upon the Constitution in that case would be placed upon it in this, for we must assume that that case had as full and careful consideration at the hands of the Privy Council as any other case coming from Australian Courts would have. Under these circumstances I think it to be the clear duty of this Court to say that the question involved ought not to be determined by the Privy Council, particularly now we know that the Privy Council is likely to interpret the Constitution in respect of the matter under consideration in a way which the majority of this Court has decided to be wrong in principle. For these reasons in my judgment the application must be refused.

Isaacs J.

For the purpose of this application it is, of course, admitted that the decision, whatever it may be, against which it is desired to appeal is a decision upon a question as to the limits inter se of the constitutional powers of the Commonwealth and the State of Victoria.

That is the basis on which the application is made, and therefore the precise form of stating the question is immaterial. The actual decision was in fact of that nature because the question was whether the Victorian Income Tax Act is, so far as it applies to the salaries of federal public servants, in conflict with Commonwealth power, or, in other words, as to the limits inter se of the constitutional power of the State of Victoria to pass such an Act affecting those salaries, and the constitutional power of the Commonwealth in respect of its public servants and their salaries, as being or affecting the means of carrying on the operations of government.

The special reason alleged here is that there is a decision of the Privy Council opposed to that of this Court; and it is alleged that there arises thereby what is termed an "intolerable position."

In order to properly arrive at the proper judgment to be given on this question, because it is really a judicial question to be determined on both the law and the facts of the situation as they present themselves to us, it is necessary to recall one or two considerations already dealt with in our judgments of yesterday.

I have already held in entire concurrence with three of my learned colleagues, in addition to our view on the 39th section of the Judiciary Act, and the inclusion of this case in the class pointed to by sec. 74, that on such a question the Privy Council is not, and cannot be regarded as an appellate tribunal from this Court unless and until the certificate is given such as is now asked for.

I pointed out that this class of question was, by a constitutional provision that finds no parallel, severed from all others and subjected to exceptional judicial treatment. It follows that where decisions of the High Court are thus, in the absence of a certificate, severed from the jurisdiction of the Privy Council, the jurisdiction of the Privy Council is equally severed from them.

Those who maintain that the Privy Council is still to be looked upon as of appellate authority in regard to such decisions are called upon to give some intelligible meaning to sec. 74 consistent with their arguments. So far, none has been given, though repeatedly asked for, and I take it that as none has been offered in the course of two elaborate arguments lasting over a fortnight, none can be fashioned that will stand the test of reason.

This is important with regard to the present application, because it must not be assumed that the same considerations are to be applied by this Court in granting a certificate as are laid down for itself by the Privy Council in granting special leave to appeal.

Indeed, sufficient weight has not been given to the fact that the certificate is to be given by this Court, and not by the Privy Council itself.

Why was it enacted, not merely that no appeal of right should exist, but that even the power of giving special leave should be taken away from the Privy Council and entrusted to this Court alone? What effect is given to that eloquent circumstance by those who still maintain that the Privy Council must still be looked upon as the Court of Appeal on these matters? That tribunal could as well judge of the general importance of the question as this Court, the facts would speak as strongly to them as to us with regard to the amount involved or as to the substantial character of the dispute, and it could form an equally valuable opinion as to how far it touches purely Imperial interests. The importance of the question cannot constitute a special reason, because every such question is of immense importance as affecting for all time the relative power of the respective legislatures of the communities concerned.

If, then, the previously universal rule of allowing appeals to the Privy Council by leave of that body, given either by itself or its delegates, was reversed, some great reason must have impelled the change. As the Imperial Parliament deprived the Privy Council of this power, and conferred it upon an Australian Court?a power not merely to permit but practically to compel the Privy Council to entertain the cause, because, being statutory, leave, once the certificate is granted, that tribunal cannot revoke or rescind it?what does that point to? It must be because Australian considerations were to have a weighty, perhaps a dominant, force in guiding the judgment of the Court in acceding to or refusing the application.

How then should Australian interests, which certainly are to have some consideration, be regarded? Turn to the Constitution for guidance. By that instrument a national Government was constructed?legislative, executive and judicial.

A special federal Court was insisted on. State Courts might or might not be utilised. In the construction of the Constitution these powers of adjudication might, at the will and discretion of the national Parliament, be excluded wholly or in part.

But the national tribunal was placed in the position of inalienable right and corresponding duty to determine these matters.

I pointed out yesterday that the Imperial Parliament indicated by the Constitution itself that it expected?perhaps I should have said hoped?that there would be uniformity of decision, but it made provision within the four corners of the Constitution in case a difference arose. That provision is that the federal Parliament, viewing the situation as a Parliament is entitled to view it?in addition to making a just deduction from federal officers' salaries?has also authority, if in its wisdom and discretion it thought right, to end the divergence by exercising the power of total or partial exclusion of State Courts from the interpretation of the Constitution, and leave the function of interpreting the national Constitution to the Supreme Australian Court.

But?because of a difference of opinion that has arisen between the national Court in the exercise of federal jurisdiction for which it was specially created, and the Courts under the supervision of the Privy Council which was in these matters expressly cut off from the national Court unless a certificate were given?it would be a total reversal of all the federal principles embodied in the Constitution if this national tribunal were to abdicate its special functions and practically repeal the 74th section by virtually, if not in form, taking a course which amounts to imprinting for all time upon this Constitution a meaning which the Court considers wrong, and which would, under present circumstances, be a foregone conclusion.

Higgins J.

As to this application I am happy to be able to concur with my colleagues, and without hesitation; but, inasmuch as I have differed from them on the main question, I should like to explain my position. This power to refuse a certificate for appeal to the King in Council we undoubtedly have. It is a privilege, and in my view, the only privilege, which the High Court has as to constitutional points. But it is a responsibility also; and I think that we should be guilty of a breach of duty if we were to pass on to another tribunal a question within the ambit of sec. 74 of the Constitution without good cause shown. It has to be assumed, for the purpose of this application, that the question is one within the ambit of sec. 74. This assumption may be right, or may be wrong; but except on such an assumption, there is no ground for making this application. I cannot find any good cause shown in this case. Sec. 74 seems to indicate that the question of giving a certificate should turn on the character of the question. For instance, if extra-Australian rights were incidentally involved, or, perhaps, if there were signs of dangerous disturbance between States, or between a State and Commonwealth, such as the decision of the High Court would not allay, it would probably be well to certify "that the question is one which ought to be determined by His Majesty in Council." But I agree with my colleagues that, where it is a matter of purely Australian concern, such as the payment by federal officers of State income tax, we should not, without very exceptional reasons, pass on the responsibility to the Privy Council. This question?as to the duty of federal officers to pay income tax?is the question, and the only question, under sec. 74, or as to which a certificate is now required. The higher question, as to the duty of this Court to follow the decision of the King in Council, as being the decision of the ultimate exponent of law for the Empire, does not come within the ambit of sec. 74; and counsel for the Commissioner of taxation, accepting for the present purposes the ruling of the majority of this Court as to the meaning of sec. 74, asks for the certificate only as to the question of liability to income tax, not as to the question of the relations of the High Court towards the King in Council. The fact that I happen to differ from my colleagues on both points is not, in my opinion, a sufficient reason for giving my voice in favour of a certificate to the effect stated in sec. 74, as to the question of liability to income tax.

However, I must say that I agree with Mr. Irvine that the position is intolerable and pregnant with mischief. But this argument, that the position is intolerable, is an argument in favour of following the decision of the Privy Council, as the appellate Court, and the final Court of all the Colonies, rather than an argument for giving a certificate on this question under sec. 74. That decision of the Privy Council will stand on the records of the Privy Council, that the income tax is payable; and, whatever may happen, it is pretty certain that the Privy Council will not overrule its decision upon the mere ground that the High Court has given a contrary decision. The question may arise not only on appeal from a Supreme Court, but also, as I have said during the argument, in a number of ways incidentally in English and other Courts; and any English Court that happens to deal with the question will treat the Privy Council as having the final power to declare the law for Australia upon all questions on which it has declared that law. It is said that the federal Parliament can exercise its power under sec. 77 (II.), so as to deprive all the State Courts of all federal appellate jurisdiction. I do not think that we are entitled to reckon on the Parliament taking any such extreme step?a step which would deprive the Commonwealth of the assistance of the very efficient State Courts, would lead to the raising of sham federal issues in order to delay decisions in the State Courts, would cause delay and expense to suitors, and would saddle the Commonwealth with many new federal Courts and functionaries. But even if the federal Parliament acted on this suggestion, it could not reverse the decision, which will stand, of the King in Council.

As to the other suggestion, that the federal Parliament may make its grants of salary subject to the rights of the States to tax them, I merely refer to it, because I do not at present want to be committed to any definitive view on the subject. At present I cannot see how, if an income tax upon the salary of a federal servant is made invalid by the Constitution, the federal Parliament can alter the Constitution by making the income tax payable. However, I do not wish to make any final pronouncement on the suggestion, which, as far as my memory serves me, has not been mentioned before in this Court.

Certificate refused.

Solicitors, for appellant, Strongman & Crouch, Melbourne.

Solicitor, for respondent, Guinness, State Crown Solicitor.

1. 1 C.L.R., 585.

2. 1 C.L.R., 585.

3. 1 C.L.R., 585, at p. 630.

[1906] UKPCHCA 4; 4. (1907) A.C., 81; 4 C.L.R., 356.