Commonwealth v Cole [1923] HCA 51; (1923) 32 CLR 602 (7 November 1923)

HIGH COURT OF AUSTRALIA

The Commonwealth and Another Appellants; and Cole Respondent.

H C of A

On appeal from a Court of Requests of Tasmania.

7 November 1923

Knox C.J.Isaacs, Higgins, Rich and Starke JJ.

Owen Dixon K.C. and Keating, for the appellants.

Clyne, for the respondent.

Knox C.J.

The only question for decision is whether this appeal is competent, for Mr. Clyne properly admits that if it is competent he has no reasons to offer why it should not be allowed. In my opinion this Court clearly has jurisdiction to entertain the appeal. The proceeding before the Court of Requests was one in which the present respondent founded his claim on sec. 64 of the Commonwealth Public Service Act 1922, and on that alone. The application being based on the provisions of that section, it appears to me that the matter before the magistrate was a matter arising under that section and, therefore, under a law made by the Parliament within the meaning of sec. 76 (II.) of the Constitution. Consequently, by sec. 39 of the Judiciary Act this Court has jurisdiction to hear the appeal. I think that the appeal should be allowed.

Isaacs J.

I think this case is governed by Troy v. Wrigglesworth[1], and I do not think it necessary to say any more.

Higgins J.

I am of the same opinion.

Rich J.

I agree.

Starke J.

I think that the Court of Requests was invested with Federal jurisdiction by virtue of sec. 64 of the Commonwealth Public Service Act 1922. But the magistrate attempted to exercise that jurisdiction in a case which did not fall within provisions of the section. I agree that the appeal should be allowed.

Appeal allowed. Order appealed from discharged. Commonwealth to pay costs of appeal pursuant to its undertaking.

Solicitor for the appellants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the respondent, Crisp & Edwards, Burnie, by McNab & McNab.

[1] [1919] HCA 31; (1919) 26 C.L.R., 305.