Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379 (4 December 1933)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Court of Petty Sessions of the Territory for the Seat of Government.

4 December 1933

Evatt J.

Hill, for the respondent.

Spender, for the appellant.

Evatt J.

Mr. Hill for the respondent has raised a preliminary objection to the hearing of this appeal. He points out that, under sec. 208 of the Court of Petty Sessions Ordinance (No. 2) 1930, the party who is dissatisfied with the decision of the Court of Petty Sessions is entitled to appeal to the High Court only in respect of what is described in the section as "an order or conviction of the Court." He then says that what was done by the magistrate in dismissing the present information was not an "order" within the meaning of sec. 208, and that, as, obviously, it is not a "conviction," this Court has no jurisdiction to hear the appeal.

Whether the jurisdiction of this Court is ultimately referable to sec. 73 of the Constitution or to sec. 52 (1) is immaterial. For, though sec. 73 confers jurisdiction upon the High Court to hear appeals from all judgments of Courts exercising Federal jurisdiction, that grant is expressly made subject to such exceptions and regulations as the Parliament prescribes. It is therefore necessary to turn to the statute passed by the Commonwealth Parliament. That statute is the Judiciary Act, which, in sec. 34A, provides that the High Court shall have such jurisdiction to hear appeals from all judgments of any Court of the Territory for the Seat of Government as is vested in it (that is, the High Court) by ordinance made by the Governor-General.

It is necessary to ascertain what is the meaning of the provisions in Part XI. of the Court of Petty Sessions Ordinance which govern appeals from the Court of Petty Sessions. First of all, the heading of Part XI. indicates that the appeals dealt with are appeals from what are called "decisions" of the Court of Petty Sessions. "Decision" is a term of wide import. Then, sec. 207, in express terms, confers jurisdiction upon the High Court in respect of "all rulings, orders, convictions or determinations," of the Court of Petty Sessions. In the present case, moreover, the magistrate, acting under sec. 143 (1) of the ordinance, after dismissing the information, made an "order of dismissal."

Without attempting any further analysis of the provisions of Part XI., I am quite satisfied that the "order of dismissal," dated 26th day of September, from which leave to appeal has already been granted by this Court, is either an "order" within the meaning of sec. 208 or it is a "ruling" or "determination" of the Court of Petty Sessions within the meaning of sec. 207.

No doubt there is much to be said for the contention, based upon Lord Herschell's speech in Boulter v. Justices of Kent[1] , that the word "order" used in conjunction with the word "conviction" does, as a rule, in relation to matters of summary jurisdiction, refer to an "order" which follows upon a "complaint." In that case, Lord Herschell said (at p. 567): "What is meant by the summary jurisdiction of magistrates is, of course, perfectly well understood by every lawyer, and in relation to that jurisdiction the words "conviction" and "order" have a well defined meaning."

But, in the present ordinance, the meaning is not only not "well defined," it is not defined at all. The Court has to ascertain it from the context of the ordinance, the heading of the Part, and the general nature of the jurisdiction conferred upon the High Court by secs. 207 and 208.

I therefore hold that the Court has jurisdiction, and I overrule the preliminary objection.

Order accordingly.

Solicitor for the appellant, W. H. Sharwood, Commonwealth Crown Solicitor.

Solicitor for the respondent, Felix F. Mitchell, Cooma, by Colquhoun & King.

1. (1897) A.C., at pp. 567, 568.