Troy v Wrigglesworth [1919] HCA 31; (1919) 26 CLR 305 (18 June 1919)

The first question we have to consider is the jurisdiction of this Court to entertain the appeal. The appeal is said to be incompetent because the Court of Petty Sessions, in fining the appellant for the alleged offence, was not a "Court exercising Federal jurisdiction" (sec. 73 of the Constitution). The reason most relied on by learned counsel for the respondent in support of this contention is that the investiture of the Court of Petty Sessions is contained in clause (d) of sec. 39 (2) of the Judiciary Act, and that investiture is in the Court when consisting of the Magistrate, and not otherwise. Another reason, not stressed by learned counsel, was that the justices asserted they were exercising State jurisdiction only, and therefore could not be taken to have exercised Federal jurisdiction.

Cases already decided— Roberts v. Ahern[1]; Baxter v. Commissioners of Taxation (N.S.W.)[2], and Miller v. Haweis[3]—are clear authorities, so long as they stand, that an appeal may lie from a State Court, as a "Court exercising Federal jurisdiction," notwithstanding it assumes to be determining the cause before it purely under the authority of State law; provided, however, in reality its determination involves a decision on a question requiring Federal jurisdiction. Those cases, of course, may be shown to be wrong, and the question has been here reasoned out. Examination of the matter, however, shows the view taken in those cases as to this question to be correct.

Sec. 76 of the Constitution enables Parliament to confer original jurisdiction on the High Court in any matter—"(i.) Arising under this Constitution, or involving its interpretation." Sec. 77 enables Parliament to make laws—"(ii.) Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States: (iii.) Investing any Court of a State with Federal jurisdiction." It is plain that jurisdiction in any matter arising under the Constitution, or involving its interpretation, is Federal jurisdiction; and it is equally plain that, if the High Court is given that jurisdiction as original jurisdiction (even if jurisdiction to decide such a matter exists in a State Court under State authority), so that it "belongs to" the High Court, or is "invested" by the Parliament in that Court, the High Court jurisdiction may be made exclusive to the extent that the Parliament declares. Now, by sec. 30 of the Judiciary Act, the High Court is given original jurisdiction in all matters arising under the Constitution or involving its interpretation. By sec. 39 (2) "the several Courts of the States" are invested with Federal jurisdiction, except as provided by sec. 38A, which is an exception of subject matter. The section adds these words: "subject to the following conditions and restrictions." The investiture is complete, so far as the Court is concerned, but it is accompanied by what are called "conditions and restrictions." One of these is contained in clause (d), which says: "The Federal jurisdiction of a Court of summary jurisdiction shall not be judicially exercised except by a ... Police ... Magistrate," &c. That clause does not contain the investiture of the Court: it is a condition or restriction of the investiture already made. "Exercise" of jurisdiction necessarily implies that it is already "invested." But by sec. 39 the jurisdiction of the High Court—which, as seen, includes constitutional questions—is made exclusive of the jurisdiction of the State Courts, except as provided by the section; that is (so far as is here relevant) except the power to decide such questions under the "invested" power, which is Federal jurisdiction. The result is that the reasoning in the cases referred to, so far from being shown to be wrong, is shown to be perfectly right. State jurisdiction to decide such a matter, there is none; Federal jurisdiction exists. If, then, the Court does proceed to determine such a matter, what jurisdiction does it in fact exercise? Clearly Federal jurisdiction; and none the less that the provisions of clause (d) are infringed. They would be similarly infringed if a Police Magistrate and the two justices sat together. How could anyone in that case say they were not exercising Federal jurisdiction?

The second reason given, namely, that the justices said they were exercising State jurisdiction, cannot be maintained. The justices might as well have said they were exercising arbitral jurisdiction or Chinese jurisdiction—both of which would have been equally existent with State jurisdiction. They were in fact exercising—though unlawfully—Federal jurisdiction, and an appeal lies to this Court to correct any error they as a Court made. Then, on that assumption, the question is: Was there a question calling for the exercise of Federal jurisdiction properly raised? Miller v. Haweis[4] lays down the law as to this. The facts relied on were bonâ fide raised, and were such as to raise it before the decision was given, in a very pronounced way.

The justices should have held their hand and have refrained from adjudicating further, and should have adjourned the case to be heard and determined as required by clause (d) of sec. 39 (2).

The appeal should be allowed, the order set aside, and the case remitted to the Court of Petty Sessions to be heard and determined as required by the clause referred to.

The appellant has been convicted in a Court of Petty Sessions of an offence under the Victorian Motor Car Act—the offence of driving a motor-car on a road in a manner dangerous to the public. At the trial it was proved beyond controversy that the defendant was a soldier in active service on home duty; that he was at the time of the alleged offence employed as a motor-driver at the Base Hospital; and that, under the instructions of the Base Hospital authorities, he was bringing a patient to the Hospital. The defence was raised that as an employee of the Commonwealth, acting on Commonwealth duty, the defendant was not subject to the Act; and that as this defence involved a matter of Federal jurisdiction the trial could not take place unless before a Police Magistrate. There was no Police Magistrate on the bench—only two Justices of the Peace.

Under secs. 76-77 of the Constitution cases "arising under this Constitution or involving its interpretation" are matters of Federal jurisdiction. It is not disputed that this case came within these words; as it could not be decided without determining that the defendant in his operation of driving for the Commonwealth was or was not subject to the Act. Sec. 77 of the Constitution enables the Commonwealth Parliament to invest any State Court with Federal jurisdiction; and this power has been exercised by sec. 39 of the Judiciary Act, which confers on the Court of Petty Sessions (not on a Police Magistrate) Federal jurisdiction with certain "exceptions" and subject to certain "conditions and restrictions," which are set forth. One of these conditions or restrictions is as follows (sec. 39 (2) (d)): "The Federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction." It is not contended that this clause with its conditions or restrictions is invalid; it is not contended that the Parliament had no power to affix such conditions or restrictions when it invested the Court with Federal jurisdiction (see sec. 79 of the Constitution). But the point is taken that there is no appeal to this Court, inasmuch as the Court of Petty Sessions was not "exercising" any Federal jurisdiction; that according to the appellant's contention it had no Federal jurisdiction unless a Police Magistrate constituted the Court; and that under the Constitution (sec. 73) and the Appeal Rules, Sec. IV., rule 1, the only appeal allowed to this Court is from Courts "exercising Federal jurisdiction." Under sec. 73 of the Constitution, the High Court has jurisdiction to hear appeals from all judgments, &c., "of any Court exercising Federal jurisdiction"; and it is said that the Court of Petty Sessions was not "exercising Federal jurisdiction" which it had not got, but was purporting to exercise or usurping such jurisdiction. It is suggested that the remedy, if any, is by prohibition, or by order nisi of the Supreme Court of the State.

The first ground of the appeal is "that the said Court of Petty Sessions as constituted had no jurisdiction to entertain the said information." On the facts which I have stated, the said Court should not have heard the information unless the Court consisted of a Police Magistrate. The Victorian Justices Act 1915 provides (sec. 63) that every Court of Petty Sessions shall consist either of two or more Justices of the Peace or of a Police Magistrate. The question is: Can this Court allow the appeal, can we make the order nisi absolute, where it appears that the Court below ought not to have convicted unless it consisted of a Police Magistrate? Can we allow the appeal when the Court below had no Federal jurisdiction that it could exercise as constituted? Is there a remedy by way of appeal to this Court? The objection is microscopic, and it has to be dealt with microscopically. At first I was impressed by the objection, absurd as it must appear to a mind unused to our methods of verbal discrimination. But, on examining sec. 39 of the Judiciary Act, I find that the Court of Petty Sessions had full Federal jurisdiction over the case, and that it has merely failed to comply with a certain condition annexed to the exercise of the jurisdiction. Sec. 39 does not, in its final clause, "except" cases arising under the Constitution from the jurisdiction of the Court below. It is the Court that is "invested" with the jurisdiction, not a Police Magistrate; but a "condition" is imposed that when the Court exercises the jurisdiction it must exercise it with certain precautions; and those precautions have not been taken. There has always been investiture of the Court with the garment, but the movement of the Court has not been carried out in the prescribed manner. This is not a case of usurpation of Federal jurisdiction, but of abuse in the exercise thereof. The difference between "exceptions" and "conditions" is well recognized in conveyancing. An "exception" must be of part of the thing granted; as, for instance, of a close of land within the boundaries (Davidson on Conveyancing, 4th ed., vol. i., p. 96). There are certain "exceptions" from the grant of jurisdiction in sec. 39 (2)—"except as provided in the last preceding section"; but the "condition or restriction" as to the exercise of the jurisdiction by a particular Magistrate is not an "exception" from the jurisdiction of the Court of Petty Sessions. The position seems to me to be the same substantially as if the Act prescribed that before any exercise of Federal jurisdiction the Court should cause notice to be given to the Commonwealth authorities, and that no such notice had been given. The jurisdiction would be in the Court, but it would be wrongly exercised. Under these circumstances I am of opinion that the Court below has exercised Federal jurisdiction, but in the wrong way; and that the appeal should be allowed, and the order nisi made absolute.

There is no need for us to decide at present as to grounds 2 and 3 of the order nisi. The whole question as to the immunity of Federal servants from State Acts deserves very careful examination when the occasion arises.

This case was argued before us principally on the first ground taken in the order nisi to review, which as amended stands thus: "(1) That the said Court of Petty Sessions as constituted had no jurisdiction to entertain the said information." On the hearing before us this ground was treated as an allegation that there was no jurisdiction to convict. The reason alleged in support of this contention was that the Court of Petty Sessions had no right to judicially exercise any Federal jurisdiction under the provisions of the Judiciary Act 1903-1915, sec. 39 (2) (d). This ground will, in my opinion, entitle the appellant to have the conviction quashed if his appeal lies, but if the Court of Petty Sessions had no jurisdiction to convict, it seems to me that we have no jurisdiction to entertain the appeal. Sec. 73 of the Constitution gives an appeal to this Court from all judgments, decrees, orders and sentences of any Court exercising Federal jurisdiction. If, as was suggested during the argument, the phrase "exercising Federal jurisdiction" in sec. 73 is to be read as including the usurpation of Federal jurisdiction, we have the curious anomaly of an appeal lying on the ground that the Court of Petty Sessions was exercising Federal jurisdiction, and being allowed on the ground that it was not exercising Federal jurisdiction. But I think it is beyond doubt that sec. 73 gives an appeal only in cases where the Court from which the appeal comes is in fact exercising a Federal jurisdiction with which it has been invested by Parliament, and not in cases where it is usurping jurisdiction. The section confers on this Court a right to entertain an appeal where the Court from which the appeal comes, in the exercise of its jurisdiction, has made a wrong order, not a power to prevent the usurpation of authority such as is exercised by English and Australian Courts in granting prerogative writs of prohibition. If this be so, we must next consider whether, in convicting the appellant, the Court of Petty Sessions was in fact exercising a Federal jurisdiction with which it had been invested by Parliament. Sec. 77 of the Constitution authorizes Parliament to make laws investing any Court of a State with Federal jurisdiction with respect to any of the matters mentioned in sec. 75 and sec. 76 of the Constitution. Sec. 39 of the Judiciary Act 1903-1915 invests the various Courts of the States with Federal jurisdiction in certain of such matters subject to specified conditions and restrictions. The condition or restriction relevant to the present case is as follows: "(d) The Federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction." This provision is express, and its intention is clear. Parliament did not wish to commit the judicial exercise of Federal jurisdiction to any but paid Magistrates, but it had no authority to control the constitution of State Courts. It could create Federal Courts, but if it chose to invest State Courts with Federal jurisdiction it must take such Courts as it found them. The Victorian Justices Act 1915 is as follows:—"63. Except where otherwise expressly enacted, every Court of Petty Sessions shall consist—(1) Of two or more justices, of whom two at least shall be present and acting together during the whole time of the hearing and determination of the case; or (2) Of a Police Magistrate; or (3) Of a single justice other than a Police Magistrate if all parties to the proceedings consent that such justice shall hear and determine the case. Such consent shall be forthwith entered upon the minutes of the Court by such justice or by the clerk of the Court."

If the Court of Petty Sessions in this case had been constituted as provided by sec. 63 (2), it might have entertained the information, and, in doing so, would have been exercising Federal jurisdiction within the meaning of sec. 73 (2) of the Constitution; but it was constituted entirely of honorary justices under sub-sec. 1, and, being so constituted, had no authority under the Judiciary Act, sec. 39 (2) (d), to judicially exercise any of the Federal jurisdiction mentioned in that section, and therefore in entertaining the information was not exercising Federal jurisdiction within the meaning of sec. 73 (2) of the Constitution, but was usurping such jurisdiction.

Appeal allowed. Order appealed from set aside. Case remitted to Court of Petty Sessions to be heard and determined as required by sec. 39 (2) (d) of the Judiciary Act 1903-1915. Respondent to pay costs in this Court and in the Court of Petty Sessions.

[1] [1904] HCA 17; 1 C.L.R., 406.

[2] [1907] HCA 76; 4 C.L.R., 1087, at pp. 1136-1138, 1140-1143.

[3] [1907] HCA 44; 5 C.L.R., 89.

[4] [1907] HCA 44; 5 C.L.R., 89.

High Court of Australia

Troy v Wrigglesworth [1919] HCA 31; (1919) 26 CLR 305 (18 June 1919)

HIGH COURT OF AUSTRALIA