Minister for Home & Territories v Teesdale Smith [1920] HCA 48; (1920) 28 CLR 584 (17 August 1920)

HIGH COURT OF AUSTRALIA

The Minister for Home and Territories Plaintiff; and Teesdale Smith and Another Defendants.

H C of A

17 August 1920

Starke J.

Ward, for the Minister, in support.

Brown, for the claimants, to oppose.

Starke J. read the following judgment:—

Aug. 17

Starke J

The Commonwealth acquired certain land belonging to Henry Teesdale Smith and Simon Matheson in South Australia by compulsory process pursuant to the Lands Acquisition Act 1906. Smith and Matheson made claims for compensation, and a "disputed claim for compensation" arose.

The Minister for Home and Territories, pursuant to sec. 38 of the Act, applied to this Court to determine the claim. However, at the request of the claimants, the application to this Court was stayed, and it was agreed on 11th December 1918 to refer the claim "to the award and final determination of a Justice of the High Court to be nominated for that purpose by the Chief Justice." This agreement provided that the Arbitration Act 1891 of the State of South Australia should not apply, and that the submission should have the same effect in all respects as if it had been made a rule of the High Court. The Chief Justice nominated my brother Powers as sole arbitrator, and he made an award dated 18th February 1920.

Motion was made on behalf of the Minister to make the award a rule of this Court, but at the hearing before me the learned counsel who appeared for the Minister enlarged his motion, with my sanction, and sought to make the submission or agreement of 11th December 1918 a rule of this Court. The question is whether the Court has jurisdiction to make the order sought. No express statutory power or rule of the Court warranting such an order was relied upon, but it was contended that the Lands Acquisition Act contemplated the reference of claims under that Act to arbitration (secs. 36 (a), 37 (b), 38 (b), and that the Court had inherent power to make the order. The Courts of common law and the Court of Chancery did, no doubt, by consent, in pending actions make references of disputes. "Such orders were in fact submissions to arbitration embodied by consent in orders of the Court" (see Fraser v. Fraser[1]). And the parties were then "obliged to submit to the award of the arbitrators under the penalty of imprisonment for their contempt in case they refuse submission" (see preamble to 9 & 10 Will. III. c. 15).

But "when persons were out of Court they could not by any agreement bring themselves into Court and create jurisdiction to issue process of contempt" (Russell on the Law of Submissions and Awards, 6th ed., p. 55; Nichols v. Chalie[2]; Lyall v. Lamb[3] and Steers v. Harrop[4]). Several statutes were passed in England to meet this difficulty and to improve the law (see 9 & 10 Will. III. c. 15; 3 & 4 Will. IV. c. 42; 17 & 18 Vict. c. 125, sec. 17 (Common Law Procedure Act); 52 & 53 Vict. c. 49 (Arbitration Act)). Even to-day parol submissions cannot be made and have not the effect of rules of Court. The Australian States have followed this legislation in the main, but it finds no counterpart in Federal legislation. In the present case there was no reference by order of the Court. The parties stayed the proceedings in Court and submitted the dispute by their own agreement to an arbitrator nominated by the Chief Justice, who, in making his nomination, performed no function appertaining to his office but simply acted as a person designated by the parties. The Courts of common law had no inherent jurisdiction to order that submissions made out of Court should be rules or orders of the Court. The High Court is created by, and its jurisdiction and powers are conferred solely by statute. Its inherent jurisdiction is not larger, as to the matter in hand, than the Courts of common law.

An action can, I apprehend, be brought to enforce the award of my brother Powers in a Court of competent jurisdiction; but neither the submission nor the award can, in my opinion, be made a rule of this Court. The motion is dismissed with costs.

Motion dismissed with costs.

Solicitors for the plaintiff, Fisher, Ward, Powers & Jeffries. for Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the defendants, Symon, Browne, Symon & Povey.

[Note.—As to this case, see now Judiciary Act 1920 (No. 38 of 1920), sec. 4.—Ed. C.L.R.]

[1] (1905) 1 K.B., 368, at p. 372.

[2] 14 Ves., 265.

[3] [1833] EngR 349; 4 B. & Ad., 468.

[4] 1 Bing., 133.