Victoria v Commonwealth [1926] HCA 48; (1926) 38 CLR 399 (30 November 1926)

HIGH COURT OF AUSTRALIA

The State of Victoria and Others Plaintiffs; against The Commonwealth Defendant.

H C of A

30 November 1926

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

Robert Menzies (with him Fullagar), for the State of Victoria and the Attorney-General thereof.

Hannan, for the State of South Australia and the Attorney-General thereof.

Brissenden K.C. (with him McTague), for the State of New South Wales intervening.

Sir Edward Mitchell K.C. (with him Drake-Brockman), for the defendant.

Knox C.J.

The Court will put its reasons into writing.

The following written judgments were delivered:—

Knox C.J.,

Isaacs, Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

Per Curiam. The Court is of opinion that the Federal Aid Roads Act No. 46 of 1926 is a valid enactment.

It is plainly warranted by the provisions of sec. 96 of the Constitution, and not affected by those of sec. 99 or any other provisions of the Constitution, so that exposition is unnecessary.

The action is dismissed.

Nov. 30

Higgins J.

I concur in the opinion expressed by the Chief Justice for the Court that the objections fail, which have been taken by the two plaintiff States to the validity of the Federal Aid Roads Act 1926.

But I desire to add, for myself only, some remarks as to the framework of this action. The only plaintiffs are two States (with their Attorneys-General); the only defendant is the Commonwealth; and the question is as to the validity of a Commonwealth Act. Counsel for the State of New South Wales has been heard, on his request; and he has supported the attitude of the two States which are plaintiffs. But, in my opinion, all the other States ought to be parties to an action such as the present. It would be very awkward if our conclusion happened to be adverse to the Commonwealth Act. The other States have as much right to be heard on such a subject as the two plaintiff States. If our decision happened to be adverse to the Commonwealth Act, the other States might have their financial arrangements seriously upset; and yet they would not be bound by that decision as they are not parties. This Court might have to entertain a fresh action by some other State, seeking to induce this Court to reconsider its pronounced decision. We could not dismiss the action for want of parties (Order II., r. 9); but it is a case eminently suitable for the application of the power given in the subsequent part of that rule: "The Court ... may, at any stage of the proceedings, ... without the application of either party, ... order ... that the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause ... be added, either as plaintiffs or defendants."

This is the modern way for enforcing the sound principle that the Court should make the performance of the judgment of the Court perfectly safe for all concerned, and prevent the chance of further litigation.

Knox C.J.

With reference to the observations made by my brother Higgins as to the framework of this action, I desire to say that all the other members of the Court carefully considered the position, and were and still are of opinion that the action is properly constituted whether the decision of the Court be in favour of or against the validity of the Commonwealth Act.

Action dismissed.

Solicitors for the plaintiffs, Frank G. Menzies, Crown Solicitor for Victoria; A. J. Hannan, Acting Crown Solicitor for South Australia.

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

Solicitor for the intervener, J. V. Tillett, Crown Solicitor for New South Wales.