Symons v City of Perth [1922] HCA 10; (1922) 30 CLR 433 (27 April 1922)

HIGH COURT OF AUSTRALIA

Symons Complainant, Appellant; and The City of Perth Defendant, Respondent.

H C of A

27 April 1922

Knox C.J., Isaacs, Higgins, Gavan Duffy and Starke JJ.

Flannery K.C. (with him Collins), for the appellant.

Leverrier K.C. (with him J. A. Ferguson), for the respondent, took preliminary objections:—

Flannery K.C.

Knox C.J.

In my opinion this application cannot be entertained. It comes before us on a reference, by my brother Starke, of an application to make absolute an order nisi to review granted by Burnside J., a Judge of the Supreme Court of Western Australia. The order nisi when granted was made returnable before a Justice of this Court. As to its having been made returnable before a Justice I say nothing. The question is whether a Judge of the Supreme Court of Western Australia had any jurisdiction to grant an order nisi returnable before this Court to review a decision of a Police Magistrate sitting in Federal jurisdiction. The procedure in Western Australia for reviewing an order of a magistrate is by order nisi to review, which is to be obtained from a Judge of the Supreme Court, and is made returnable before a Judge of the Supreme Court or the Supreme Court. It is suggested that r. 1 of Sec. IV. of the Appeal Rules of this Court authorizes a Judge of the Supreme Court of a State to grant an order nisi such as that which is the basis of an appeal to the Supreme Court of the State, but returnable before this Court. I cannot read Sec. IV., r. 1, in that way. By sec. 39 (2) of the Judiciary Act an appeal to the High Court is given from a decision of any inferior Court of a State exercising Federal jurisdiction whenever an appeal lies from decisions of that Court to the Supreme Court of the State. Sec. IV., r. 1, of the Appeal Rules provides that "Appeals to the High Court from decisions of inferior Courts of a State in the exercise of Federal jurisdiction" (this is one of that class of appeals) "shall be brought in the same manner" &c. "as are respectively prescribed by the law of the State for bringing appeals from the same Courts to the Supreme Court of the State in like matters." In my opinion, that does no more than provide that the method of procedure to be adopted in conveying an appeal from an inferior Court exercising Federal jurisdiction is to be as nearly as possible similar to the method adopted in conveying an appeal from that inferior Court to the Supreme Court of that State. There is no foundation for the argument that that rule goes further and confers on a Judge of the Supreme Court of a State power to grant an order nisi to review returnable before this Court.

I think that this Court has no jurisdiction to entertain this application.

Isaacs J.

I agree that this appeal is incompetent. The Rules of the High Court, which relate both to original and to appellate jurisdiction, are rules which by the High Court Procedure Act are to regulate the proceedings of the High Court. The suggestion that r. 1 of Sec. IV. of Part II. of those Rules confers a power on the Supreme Court of a State to allow an appeal to this Court is unfounded. Whatever power is possessed by the Supreme Court, and whether that power is exercised by one Judge or by more than one, must be contained in the grant of power by sec. 39 of the Judiciary Act or some other specific Federal legislation, so far as Federal jurisdiction is concerned. Nothing I say is to be taken as casting any doubt upon the power of the Supreme Court in such a case as this to entertain an appeal from a Court of inferior jurisdiction. But what I am clear about is that there is no power in the Supreme Court to launch an appeal in this Court.

Higgins J.

I agree.

Gavan Duffy J.

I agree that the appeal is incompetent.

Starke J.

I agree that the appeal is improperly before this Court, although by an order nisi granted by a Justice of this Court it might properly have been brought before us.

Knox C.J.

The appeal is struck out and (by a majority) with costs.

Appeal struck out with costs.

Solicitors for the appellant, Dwyer, Durack & Dunphy, Perth, by Sullivan Bros.

Solicitors for the respondent, Parker & Parker, Perth, by Dawson, Waldron, Edwards & Nicholls.