Edie Creek Pty Ltd v Symes [1929] HCA 37; (1929) 43 CLR 53 (11 November 1929)

HIGH COURT OF AUSTRALIA

Edie Creek Proprietary Limited Plaintiff, Appellant; and Symes Defendant, Respondent.

H C of A

On appeal from the Central Court of the Territory of New Guinea.

11 November 1929

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

E. M. Mitchell K.C. (with him Badham ), for the appellant.

H. V. Evatt K.C. (with him C. Evatt ), for the respondent.

E. M. Mitchell K.C., in reply.

Knox C.J.

In this case leave to appeal was granted in Brisbane relying on the provisions of sec. 24 of the Judiciary Ordinance 1921-1927 of the Territory of New Guinea, and the appeal is now before us in pursuance of the leave so granted. It now appears that since the making of that Ordinance, Mining Ordinance (No. 2) 1926 for the same Territory has been made, by sec. 18 of which sec. 103B is introduced into the principal Mining Ordinance. Sec. 103B provides that "Upon the hearing of the appeal" (i.e., from the Warden) "the Central Court may make an order reversing or varying the decision of the Warden's Court, or dismissing the appeal, and all such orders shall be final and conclusive on the parties and the Judge shall (if necessary) order payment of money or the delivery of the possession of any land, mining tenement, water, gold, mineral, or other property to the person who was the complainant before the Warden's Court, or restitution of any land, mining tenement, water, gold, mineral, or other property, as the case may require, and may make such order with respect to the costs of the appeal, and of the proceeding appealed from, as the Court thinks fit." This alteration of the law was not brought under the notice of this Court when leave to appeal was granted. The present appeal is from an order of the Central Court of New Guinea dismissing an appeal from the decision of the Warden's Court, and it now appears that, whatever was the position before the passing of sec. 103B, the right of appeal in such a case from the Central Court to this Court has been taken away by that section. It follows that the leave purported to have been granted under sec. 24 of the Judiciary Ordinance 1921-1927 in this case is ineffective. It may be urged that power to grant leave to appeal from a decision of the Central Court is contained in the general provisions of sec. 73 of the Constitution, but that contention fails because the Central Court is not a Federal Court within the meaning of that section, and, if it were, it is not properly constituted, the Judge not having the necessary tenure of office. For these reasons the appeal is incompetent and the leave to appeal ought to be rescinded.

Isaacs J .

I agree. I base my decision on the words "final and conclusive" as appearing in sec. 103B of the Mining Ordinance (No. 2) 1926.

Gavan Duffy J.

I agree.

Starke J .

I agree that the leave to appeal should be rescinded because, by the Mining Ordinance which is in force in the Territory of New Guinea, the order of the Central Court in this matter is "final and conclusive."

Dixon J .

I agree.

Leave to appeal rescinded. No order as to costs.

Solicitors for the appellant, Fred. C. Emanuel & Pearce.

Solicitors for the respondent, John Williamson & Son.