Green v Titmus [1927] HCA 25; (1927) 39 CLR 595 (9 June 1927)

HIGH COURT OF AUSTRALIA

Green and Others Appellants; and Titmus Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

9 June 1927

Isaacs A.C.J., Powers and Starke JJ.

Keating, for the appellants.

Owen Dixon K.C. and Tait, for the respondent.

Isaacs A.C.J.,

Powers and Starke JJ.

Per Curiam. We entertain no doubt that under the Act of 1917, 8 Geo. V. No. 18, of Tasmania, an appeal lay from the decision of Crisp J. to the Full Court. That Act is one in which the Tasmanian Legislature directed its attention to a specific subject, namely, the administration of justice in the Supreme Court, and laid down provisions in very sweeping terms. In order to make it quite clear that no previous legislation should stand in the way of this new provision, it prefaced the first operative section by the words "notwithstanding any law to the contrary." In the presence of those words the presumption which primarily is entertained by a Court when it meets general provisions in one Act, and special provisions in other Acts, of the Legislature on a given subject, cannot exist. You cannot have a presumption of intention contrary to an express statement to the contrary; and that exists in the present case. So that by sec. 2, whatever may be found in prior enactments of the Tasmanian Legislature to the contrary, the jurisdiction of the Supreme Court and all the powers and authorities of that Court in every jurisdiction thereof are exercisable by the Supreme Court or by a single Judge of that Court. Sec. 3 is complementary of sec. 2, and under it wherever a single Judge does exercise the jurisdiction of the Supreme Court, then an appeal lies to the Supreme Court itself from the decision of that Judge. Those two sections apply to the present case because the provisions in the Licensing Act with regard to the exercise of the jurisdiction of the Supreme Court created functions and jurisdiction of a strictly judicial nature—not a mere opinion, but a decision in the strict sense—and therefore the case falls within the provisions of the Act of 1917, even though it should be (and we do not decide the point) that an opinion would not fall within sec. 3 of the Act of 1917.

For these reasons we think that the decision of the Full Court that it had no jurisdiction to entertain the appeal from Crisp J. was erroneous.

The resultant order we make is that the appeal from Crisp J. be remitted to the Full Court of the Supreme Court for hearing and determination. The alternative leave given by this Court to appeal from the decision of Crisp J. was by way of precaution only, and is now unnecessary. We therefore rescind the special leave to appeal from the order of Crisp J.

Appeal from the order of the Full Court allowed. Order of the Full Court discharged. Appeal from Crisp J. remitted to the Full Court for hearing and determination. Special leave to appeal from the decision of Crisp J. rescinded. Respondent to pay costs of this appeal, not including costs in relation to the appeal from Crisp J.

Solicitors for the appellants, Martin & Hobkirk, Shields & Heritage, Launceston, by Maddock, Jamieson & Lonie.

Solicitor for the respondent, Harold Bushby, Launceston, by Rylah & Anderson.