Bayne v Blake [1908] HCA 5; (1908) 5 CLR 497 (19 March 1908)

HIGH COURT OF AUSTRALIA

Bayne and Another Plaintiffs, Appellants; and Blake and Another Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

19 March 1908

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

Agg (with him Ah Ket), for the appellants.

Irvine K.C. and Weigall K.C., for the respondents.

Agg in reply.

Griffith C.J. delivered the judgment of the Court.

Griffith C.J.

This case raises a question which from one point of view is of very great importance as appertaining to the relations between the High Court and the Courts of the States, and from another point of view has become of trivial importance. It is necessary to refer to the facts in some detail. On 17th September 1906, upon the hearing of an appeal from a decision of the Supreme Court of Victoria, the High Court held[1] that the defence set up by the defendants in the suit was invalid, and declared that the plaintiffs were entitled to recover from the defendants a sum of money the amount of which was not then ascertained, but which was such a sum, not exceeding £5,000, as represented the amount by which the shares of the beneficiaries were diminished by failure of the administratrix to duly administer, but so that no sum should be recoverable in respect of any diminution of the share of any beneficiary by reason of any such failure in which such beneficiary had concurred or acquiesced. The Court adjourned further consideration of the action with liberty to apply, and further ordered that the cause should be remitted to the Supreme Court to do therein what was right in pursuance of the judgment. The order was made in pursuance of sec. 37 of the Judiciary Act 1903 which provides that the High Court in the exercise of its appellate jurisdiction may "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." The validity of that order was impeached by Mr. Irvine, but it is obviously authorized by the powers conferred by sec. 51 of the Constitution, which authorizes the Parliament to make laws as to matters incidental to the execution of any power vested in the Federal Judicature. The power of an appellate Court has always in practice in the British dominions been held to imply a power to remit the judgment for execution to the Court from which the appeal is brought. Moreover, if that were not so, it would be necessary to appoint a number of officers in the several States for the purpose of executing the judgments of this Court, if anything remained to be done before final justice was done between the parties. We have no doubt as to the validity of the provision in sec. 37 of the Judiciary Act 1903, and the only question is as to its interpretation. In the case of Peacock v. D. M. Osborne & Co.[2], decided in September last by the Full Bench, this Court said:—"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." It was then pointed out that the Supreme Court might formally make such an order, but that it would be invalid. The Court then went on to say:—"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." With these preliminary observations I proceed to state the facts of this case.

After the judgment of this Court was given in September 1906, His Majesty with the advice of the Privy Council was pleased in November 1906 to grant special leave to appeal from the order then made. Thereupon application was made to a Judge of this Court, and the Judge thought it fit that such a stay should be granted, except in one particular which it is not necessary to further mention. Subsequently another application was made on behalf of the plaintiffs to allow some of the proceedings to go on notwithstanding the stay. That application was at first refused: Bayne v. Blake[3]. It was pointed out that, as a general rule, proceedings should be stayed when an appeal to the Privy Council was pending, but that there might be circumstances which would justify some of the proceedings going on notwithstanding the pendency of the appeal. That application was adjourned, and was subsequently brought on again upon materials which were then debated, and, rightly or wrongly, the Judge to whom the application was made came to the conclusion that, under the circumstances, it was right that the inquiry which was directed by the original order of this Court should be made at once, and the stay was to that extent withdrawn. Thereupon the original judgment of this Court came, to that extent, into full operation, and it was, in the words of sec. 37 of the Judiciary Act 1903, the duty of the Supreme Court "to execute the judgment of the High Court in the same manner as if it were its own judgment." I have already pointed out that, according to the opinion of this Court, an order staying proceedings is not an order in execution of a judgment of this Court. The plaintiffs, having obtained a withdrawal of the stay granted by this Court, made an application in July 1907 to Hodges J., and counsel for the defendants asked that the hearing of the case should be adjourned until the decision of the Privy Council was given. That was, in effect, asking a stay of proceedings. The learned Judge is reported to have said:—"The matter is now before the final Court of Appeal, and I think it would be a wicked waste of public time and a wicked waste of the private moneys of the parties to conduct the inquiry whilst that appeal is pending." Upon that I will only say that the language is somewhat unusual to use in reference to a judgment of an appellate Court. The learned Judge then adjourned the matter indefinitely. Subsequently the case of Peacock v. D. M. Osborne & Co.[4] came before this Court in which, as I have said, it was laid down by the Full Bench that the Supreme Court could not grant a stay of proceedings. Fortified by that decision, the plaintiffs made an application to Madden C.J. to proceed with the inquiries directed by this Court. That application came on for hearing in December 1907, and the learned Chief Justice, to whom Peacock v. D. M. Osborne & Co.[5] was cited, ordered that the matter be deferred until the result of the decision of the Privy Council should be made known, and he further ordered that the plaintiffs should pay the costs of their application which had been made to him in order that the order of this Court might be carried out. The learned Chief Justice is reported to have said:—"The High Court cannot direct the Chief Clerk of the Supreme Court to proceed with these inquiries; and I am not the servant of the High Court, so that anything I do must be as a Judge of the Supreme Court, according to the procedure of this Court, and there is no authority for the present application in the Rules of this Court." I do not know what the last remark refers to. It probably refers to some formal matter. Although the learned Chief Justice is not a servant of this Court, yet he is a citizen, and he is a member of a Court of the Commonwealth, and, by the express language of sec. V. of the Commonwealth of Australia Constitution Act, "all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State." The learned Chief Justice is therefore bound by the Judiciary Act 1903 just as is any private person, and sec. 37 of that Act expressly says that it shall be the duty of the Court to which a cause is remitted to execute the judgment of the High Court in the same manner as if it were its own judgment. So that the learned Chief Justice, although he is not a servant of this Court, is an officer of the law required by law to execute the orders of this Court. Under these circumstances it is manifest that the order he made is wrong; he had no right to order that the inquiries directed by this Court should be adjourned until the decision of the Privy Council was made known. That was a stay of proceedings which this Court had shortly before declared the Supreme Court had no authority to make. It follows that the plaintiffs were entitled to an order. Whether proceedings should now be stayed on grounds which show a change of circumstances, is a matter irrelevant to the present discussion.

In the result the defendants, notwithstanding the order of this Court, and the withdrawal of the stay by this Court, have obtained a delay of about twelve months. Under those circumstances they are not entitled to any consideration. We were very glad to hear the disclaimer on behalf of the defendants of any intention to act in defiance of the High Court. But it is manifest that any attempt of that sort must be futile. The High Court is not only a Court having federal jurisdiction, but it is also a Court of Appeal for every State, and as much respect is due to it as if it were a Court of Appeal from the Supreme Court in the State.

We should like to add a word as to the observation of the learned Chief Justice that "the High Court cannot direct the Chief Clerk of the Supreme Court to proceed with these inquiries." It is not necessary, for reasons I will give directly, to discuss that statement, but I may remark that this Court can make any order that the Supreme Court ought to have made, and, if it was the duty of the Supreme Court to direct its Chief Clerk to make the inquiries, this Court also can make that order. We will not contemplate the case of an officer of the Supreme Court refusing to obey an order of this Court. It is sufficient to say that in the United States it is the practice for the Supreme Court to make a direct order on a State officer to obey its judgment. For these reasons we are of opinion that the order appealed from is wrong and must be discharged.

It would follow in the ordinary course that this Court should direct an inquiry by the Chief Clerk of the Supreme Court. But for certain reasons there is apparently no necessity to make that order at the present moment. It will be sufficient to allow the appeal, to discharge the order appealed from, and to order the defendants to pay the costs of the appeal.

The costs of the application to the Supreme Court should be costs in the cause.

Appeal allowed with costs. Order appealed from discharged.

Solicitor, for the appellants, J. L. Clarke.

Solicitors, for the respondents, Blake & Riggall.

[1] [1906] HCA 54; 4 C.L.R., 1.

[2] [1907] HCA 42; 4 C.L.R., 1564, at pp. 1567, 1568.

[3] [1907] HCA 71; 4 C.L.R., 944.

[4] [1907] HCA 42; 4 C.L.R., 1564.

[5] [1907] HCA 42; 4 C.L.R., 1564.