Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313 (31 March 1939)

In this matter the appellant has served a notice of appeal to this court against a decision of the Full Court of the Supreme Court of Queensland upon the basis that he has an appeal as of right.

The decision of the Full Court was given under sec. 118 of the Elections Act of 1915 of Queensland, which provides that an appeal shall lie to the Full Court from every decision of "the judge" upon a question of law. "The judge" is the "Elections Tribunal" which is established under sec. 101. That section provides: "There shall be an Elections Tribunal, which shall be constituted by a judge of the Supreme Court. The Elections Tribunal shall be a court of record."

The appellant and the respondent were candidates at a parliamentary election which took place on 2nd April 1938. The returning officer declared that the respondent was duly elected. The appellant lodged a petition under the Act in which he alleged certain breaches of the Elections Act by way of illegal practices and otherwise. The learned judge who constituted the tribunal (E. A. Douglas J., as the justice nominated by the Chief Justice under sec. 102 of the Act) decided in favour of the petitioner and declared that the respondent was not duly elected, but postponed the granting of the certificate which he is required to send to the Speaker under sec. 117 until the hearing of an appeal (if any) under sec. 118. The respondent appealed to the Full Court. The Full Court allowed the appeal and remitted the petition to the Elections Tribunal to be dismissed.

The respondent has applied to this court by motion to set aside the notice of appeal upon the ground that there is no appeal as of right. The motion is supported by the following contentions:

(1) That the decision appealed against is not a judgment, decree, order or sentence of the Supreme Court within the meaning of sec. 73 (ii.) of the Commonwealth Constitution; (2) that, if the decision in question was given by the Supreme Court, it was not given in the exercise of judicial authority; (3) that, if the decision is a judgment, decree, order or sentence of the Supreme Court, it is not a judgment which falls within the provisions of sec. 35 (1) (a) (1) or (2) of the Judiciary Act 1903-1937, because it was not given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £300 nor did it involve any claim &c. to or respecting any property or civil right amounting to that value; (4) that, if it is a judgment falling within sec. 35 (1) (a) (1) or (2) of the Judiciary Act, it is an interlocutory judgment from which an appeal can be brought only by leave.

The appellant opposed these contentions, and alternatively applied for leave to appeal upon the basis that the decision of the Full Court was a judgment, but an interlocutory judgment, within sec. 35 (1) (a) of the Judiciary Act, or for special leave under sec. 35 (1) (b) if, though a judgment, it did not fail within sec. 35 (1) (a) of the Judiciary Act.

The first contention of the respondent is that the Elections Tribunal is not the Supreme Court and that any action of the Full Court upon appeal made to it under sec. 118 is not the action of the Supreme Court. The argument is that the judge constituting the Elections Tribunal does not sit or act as a judge of the Supreme Court but as constituting an altogether separate and distinct tribunal. He is, it is contended, a persona designata, as was held in the case of Holmes v. Angwin[1]. I agree that the Elections Tribunal is not the Supreme Court of Queensland and that the judge constituting the tribunal does not in that tribunal exercise any functions as a judge of the Supreme Court. Sec. 101 creates the tribunal by words which have already been quoted and which expressly provide that the tribunal shall be a court of record. When a tribunal is created by words such as these it must, in my opinion, be held to be a new tribunal depending upon such creation, and it cannot be identified with any other court. There was no such provision in the statute which was considered by the court in the case of Medical Board of Victoria v. Meyer[2]. In my opinion, the respondent succeeds in establishing the first proposition upon which he relies, namely, that the Elections Tribunal is not the Supreme Court of Queensland.

But sec. 118 gives an appeal to the Full Court, and the appeal to this court is from a decision of the Full Court. The Full Court is the Full Court of the Supreme Court of Queensland. It is not constituted by or in any way dependent for its existence upon the Elections Act. Thus, although the proceeding begins in a court which is not the Supreme Court, the appeal is heard and determined by the Supreme Court. Thus, in my opinion, the decision of the Full Court from which the appellant seeks to appeal is prima facie a judgment of the Supreme Court.

But the respondent then contends that it is not a judgment which affects any rights of the parties so to be a judicial act which can be the subject matter of appeal. The contention is that it is a decision in aid of administrative or parliamentary action. In my opinion an answer to this contention is to be found in the facts that the Elections Tribunal itself is established as a court of record and that an appeal may be taken to the Full Court upon questions of law. The Full Court, in acting under sec. 118, is dealing as the Supreme Court with questions of law and is therefore exercising a judicial function between parties. Comparison may be made with cases such as Smith v. Mann[3] and Victorian Railways Commissioners v. McCartney and Nicholson[4].

But, even if the decision of the Full Court be a judgment, it is still necessary, in order that it should be appealable under sec. 35 of the Judiciary Act, that the conditions specifically prescribed by that section should be satisfied. No sum amounting to £300 or property of the value of £300 is involved in the appeal. It is contended, however, that a matter at issue or a civil right amounting to or of the value of £300 is in question because a member of the Queensland Parliament receives a payment of £650 per annum for his services. If the matter is regarded from the point of view of the appellant, this proposition cannot be sustained. It cannot be said that his chance of winning a seat at a future election is of the value of £300. If the matter is regarded from the point of view of the respondent, it is true that the respondent would receive salary at the rate of £650 per annum for the term of the parliament, however long that term may be. The term of any parliament is uncertain. There is no evidence as to the amount of any deductions to be made from the salary for necessary expenses. But the appellant has sworn that "the question now at issue between the parties is for or in respect of a sum or matter at issue amounting to or of the value of three hundred pounds or more or involves directly or indirectly a claim, demand or question to or respecting a civil right amounting to or of the value of three hundred pounds." The argumentative challenge to this sworn statement is not, in my opinion, sufficient to exclude the application of the general rule that such a statement made by the appellant should, in the absence of evidence to the contrary, be accepted (Ashton & Parsons Ltd. v. Gould[5]).

But, as already stated, the evidence before the court shows that the decision of the Full Court does not affect any right of the appellant (as distinct from the respondent) of the value specified. In Beard v. Perpetual Trustee Co. Ltd.[6] it was held that, in order that a judgment may fall within sec. 35 (1) (a) (2) of the Judiciary Act, it must involve a determination which so prejudicially affects the litigant wishing to appeal from it as to make him worse off by at least £300 than he would be if he appealed and were wholly successful in his appeal. If this decision is to be regarded as establishing the relevant criterion, the appellant in the present case fails to establish any right of appeal. In Tipper v. Moore[7], however, a different criterion was adopted, namely, the value of the subject matter which was substantially the matter in contest. This unsatisfactory state of the decisions can be properly resolved only by a fully considered judgment of a Full Court where a decision upon the question is necessary. This case does not present a suitable occasion for the determination of this question. For myself I find it unnecessary to determine it, because, for reasons which I am about to state, I am of opinion that it would be proper to grant special leave to appeal.

In my opinion the order of the Full Court was an interlocutory order because it did not determine as between the parties whether the petition should be granted or dismissed. The order of the Full Court was that the matter should be remitted to the Elections Tribunal for the purpose of having the petition dismissed. In my opinion this order is an order similar to an order that final judgment in an action be entered but not itself amounting to a final judgment (Cox Brothers (Australia) Ltd. v. Cox[8]). But the order, though interlocutory, is, from a practical point of view, decisive of the rights of the parties, and therefore, if the order otherwise came within the provisions of sec. 35 as to involving a matter &c. of the value of £300, I would be in favour of granting leave to appeal in accordance with the principles laid down in Ex parte Bucknell[9]. As, however, it is uncertain whether the order comes within those provisions, I proceed to consider whether it is proper to grant special leave to appeal.

It is urged that questions relating to parliamentary elections are prima facie of such a character that they should be determined either by Parliament itself or by the body to which Parliament has entrusted the decision upon them, and that, on this ground, special leave to appeal should not be granted. But, if Parliament has conferred a new jurisdiction upon the Supreme Court (as I think it has done), an aggrieved party has a constitutional right to appeal or to apply for special leave to appeal. That right cannot be diminished by State legislation: Cf. Holmes v. Angwin[10]. Accordingly, in my opinion, any desire of a State Parliament to restrict to the Supreme Court the consideration of questions affecting parliamentary elections cannot be regarded as a decisive element upon an application for special leave to appeal. The questions upon which leave to appeal is sought are important in themselves. Four judges of the Supreme Court are equally divided in opinion upon them.

The order appealed from in this case is interlocutory. It does not at once affect the status, deal with or determine the final rights of the parties. It is merely a step in the procedure. The final determination of the matter is left to the Elections-Tribunal judge (Standard Discount Co. v. La Grange[11]; In re a Debtor[12]). Moreover, the order is not appealable as of right. I adhere to what I said in Beard v. Perpetual Trustee Co. Ltd.[13], based on the cases there cited, that the appealable value is the value of the contested matter to the appellant. The appellant's claim is a mere spes electionis and not a jus ad sedile. But these considerations do not conclude the matter, because the appellant applied to us for special leave. It was contended that, because an appeal to the Full Court on points of law was given, their decision was differentiated from that of the tribunal which, under Holmes v. Angwin[14], was not subject to our appellate jurisdiction. Even if this be true, we should wait for a very strong case before we exercise our discretion and before we attract to ourselves the decision of a fragmentary part of the total legal contest the merits of which lie beyond our jurisdiction. It is enough to say that this is not such a case.

In my opinion, the motion to set aside the notice of appeal should be allowed and the application for leave and special leave refused.

The appellant, Webb, presented a petition to the Elections Tribunal under the Elections Acts 1915 to 1936 of Queensland praying for a determination that the respondent Hanlon was not duly elected as a member of the Legislative Assembly. The Elections Tribunal declared that Hanlon was not duly elected, and the latter then appealed to the Supreme Court of Queensland in Full Court, pursuant to sec. 118 of the Act, which held that there was no evidence to support certain conclusions of the Elections Tribunal and remitted the matter to it. The effect of the determination would apparently be that the petition should be dismissed and the appellant declared to be duly elected.

The appellant then gave notice of appeal from the determination of the Full Court to this court, whereupon the respondent moved to set aside the notice of appeal as wholly incompetent and the appellant also moved for leave or special leave to appeal.

The Elections Acts 1915 to 1936 of Queensland provided for an Elections Tribunal constituted by a judge of the Supreme Court and created it a court of record. It has authority to inquire into and determine election petitions and to determine all questions of law and fact arising upon such petitions. It is to be guided by the real justice and good conscience of the case without regard to legal forms and solemnities. It is required to declare, upon the questions of fact and law before it, whether the person returned or some other person was duly elected or whether the election was void or whether the person elected was qualified or disqualified and to certify in writing such determination to the Speaker, and upon such certificate being given such determination shall be final to all intents and purposes.

The decision of this court in Holmes v. Angwin[15] is decisive that such a determination is not a judgment, decree, order or sentence appealable to this court within the meaning of the Constitution, sec. 73: See also Théberge v. Laudry[16]. But sec. 118 of the Act provides that an appeal shall lie to the Full Court from every decision of a judge upon a question of law. "When notice has been given of an intended appeal, the judge shall postpone the granting of the certificate hereinbefore mentioned until the determination of the appeal by the Full Court." Then sec. 120 provides that, "if it appears to the judge upon the trial of a petition or reference that any question of law requires further consideration, the judge may postpone the granting of the certificate hereinbefore mentioned until the determination of such question by the Full Court, and may for that purpose reserve any such question for the opinion of the Full Court."

It is contended that the determination of the question of law by the Full Court is nevertheless a judgment, decree, order or sentence appealable to this court pursuant to sec. 73 of the Constitution. But the determination of questions of law is not decisive of the appealable nature of the determination, for, as has been observed, the Elections Tribunal has that authority; nor is a provision, according to the decision in Holmes v. Angwin[17], that the Supreme Court of a State shall have jurisdiction to hear and determine election petitions: See Holmes v. Angwin[18]. It is not the form that should be examined but the substance of the matter, and the truth is that the whole inquiry, whether before the Elections Tribunal or the Full Court, is an inquiry merely incidental to, and for the purposes of determining, the right of some person to sit in Parliament: See Holmes v. Angwin[19].

The provisions are all part of the electoral machinery and have nothing to do with the ordinary rights of parties who are litigants: See Holmes v. Angwin[20]. They give jurisdiction to an independent and impartial tribunal to determine questions that once were determined by the legislature itself. And Holmes v. Angwin[21] is, in my mind, decisive that the legislature can designate its courts or judiciary for this special purpose without involving the consequence that its determinations are subject to the review of this court. It would be surprising if such determinations came under the review of this court, for rights and privileges of the kind in question here have been jealously "maintained and guarded" and regarded as pertaining to the legislative body concerned or its substitute.

In my opinion it is not enough to say that the case is not one in which leave or special leave to appeal should be granted. Such a course would only unsettle the clear decision in Holmes v. Angwin[22] and lead eventually to the discretion of this court. It is little use saying that it will be a judicial discretion, for no practice can impose any limit on its exercise. Perhaps the legislature of Queensland can make it plain and put the matter beyond the possibility of doubt that the Full Court is only part of the electoral machinery and not acting in its ordinary capacity.

The motion to set aside the notice of appeal should be allowed and the motions for leave and special leave to appeal refused.

In my opinion the appeal is incompetent, not only because the order appealed against is interlocutory, but because it is not of a description in respect of which an appeal lies without special leave.

The order allows an appeal by the now respondent to the Supreme Court of Queensland against an order of an Elections Tribunal declaring that he was not duly elected at an election for the Legislative Assembly for the State of Queensland. The order of the Supreme Court remitted the matter to the Elections-Tribunal judge further to deal with it according to law, but, under a videlicet, stated what he should do, namely, dismiss the now appellant's petition and declare the now respondent duly elected.

The order is interlocutory because it does not itself undertake the direct declaration or expression of the rights of the parties, but remits that function to the court or tribunal appealed from: See Cox Brothers (Australia) Ltd. v. Cox[23] and the authorities referred to in the argument of that case[24]. An appeal does not lie without special leave, because the order does not fall within any of the paragraphs of sec. 35 (1) (a) of the Judiciary Act 1903-1937.

The parties to the appeal were candidates at the election declared invalid by the Elections Tribunal, and the respondent obtained the largest number of votes. The appellant petitioned against his return. In reversing the decision of the Elections Tribunal and directing that the respondent should be declared duly elected, the order under appeal dealt with the respondent's claim to be a member of the Legislative Assembly; but, conceding that membership of the Assembly may be of the value of £300, it cannot, in my opinion, be said that the matter at issue between the parties was of that amount or value.

The appellant's claim as petitioner was not that he might be declared elected in lieu of the respondent, but that the election might be avoided in order that he might again submit himself as a candidate for the seat. When par. 1 of sec. 35 (1) (a) speaks of a sum or matter at issue, I do not think that it covers a case where the interest of the appellant is enough only to give him a locus standi to attack the respondent's title to an office, or the like, valued at the prescribed amount, and does not involve any right with respect to the office on the part of the appellant.

Par. 2 contains the expression, order which "involves ... indirectly any ... question ... respecting ... any civil right ... of the value of" £300. No doubt there is more to be said for the view that the order under appeal fills this description. The language of par. 2 has its source in Orders in Council prescribing what appeals should lie as of right to the Judicial Committee. But under those orders it is the appeal, not the judgment or order, that must involve a claim or question to or respecting property or some civil right amounting to or of the value of the prescribed sum: See Bentwich, Privy Council Practice, 2nd ed. (1926), pp. 19, 20. Some variation of expression occurred in older Orders in Council, but the chief decisions upon them appear to be regarded as applicable to the form of words now in operation: Cf. Bentwich, op. cit., pp. 142, 143, where reliance is placed upon Macfarlane v. Leclaire[25] and Allan v. Pratt[26], decisions upon which the Full Court of Victoria, particularly Cussen J., relied too in Malone v. Registrar of Titles [No. 2][27]. As a result a test is applied which looks to the prejudice caused to the appellant by the order from which he seeks to relieve himself by appealing. Cussen J. suggests that the words "appeal involves" are important because, as I understand it, they show that the appeal must concern the appellant to the extent of the necessary amount or value[28]. Much the same view was taken of the words of sec. 35 (1) (a) by this court in Beard v. Perpetual Trustee Co. Ltd.[29]. The test there stated is that the order must involve directly or indirectly a determination which so prejudicially affects the litigant wishing to appeal from it as to make him worse off by at least £300 than he would be if he appealed and were wholly successful in his appeal. It is not easy to see how this test leaves room for the decision in Tipper v. Moore[30], where a beneficiary was allowed to appeal as of right from a grant of probate in respect of an estate worth more than £300 although his own interest in setting aside the will involved less than that amount. But, although in that case the appellant's locus standi to impeach the order for probate depended on his own interest, yet he was seeking an order which would necessarily establish all the rights alternative to and excluded by the will which the grant of probate upheld. The decision is consistent with the view that what must be measured or valued is the prejudice which arises from the judgment or order, as opposed to the value of the property or civil right which the judgment or order establishes in the respondent. But it is not consistent with the view, which the exact language used in Beard's Case[31] expresses, that the prejudice suffered by the appellant and no-one else must be considered. However the two authorities may be reconciled, I think the course of decision is against construing sec. 35 (1) (a) (2) as authorizing an appeal as of right against an order which, while it stands, does not prejudice to the extent of £300 proprietary or other rights to which any person or persons would be entitled if such an order had not been made or if the order sought by the party appealing had been made.

On the footing that his appeal as of right might be incompetent, the appellant applied for special leave to appeal. The decision of this court in Holmes v. Angwin[32] puts the Elections Tribunal outside the category of courts from whose judgments, decrees, orders, or sentences an appeal lies to this court; at all events, it establishes that the decision of that tribunal is not an order of the Supreme Court from which an appeal is given by sec. 73 of the Constitution. But the order from which special leave is sought was not made by the Elections Tribunal. It was made on appeal from the Elections Tribunal under sec. 118 of the Elections Acts 1915 to 1936 Q., which enacts that an appeal shall lie to the Full Court from every decision of the judge upon a question of law. It is evident that the jurisdiction or authority given by this provision is exercisable as an incident of the power to adjudicate upon disputed elections conferred in the first instance upon the judge of the Supreme Court who sits as the Elections Tribunal. If the Full Court, as the Supreme Court, is invested with a statutory jurisdiction to correct by judicial order the decisions upon questions of law of the Elections Tribunal, presumably we are not prevented by Holmes v. Angwin[33] from entertaining an appeal from the order of the Full Court. Whether sec. 118 confers a jurisdiction of this character upon the Supreme Court as such is a question of interpretation. But, assuming that question were decided in the affirmative, I think that only in an exceptional case ought we to grant special leave to appeal to this Federal court from an order made in the course of exercising a special and restricted power in relation to State elections which the State legislature has thought fit to confer upon what, ex hypothesi, is the Supreme Court as an incident of the transfer from the Assembly itself of one of its own powers or privileges to a special tribunal, the Elections Tribunal, a tribunal which is of such a nature that its decisions lie outside our appellate jurisdiction.

In the present case it cannot be said that some very distinct and definite question of law of wide general importance can be isolated and dealt with independently of the facts. It is true that questions of law are involved in the decision of the Full Court. But the case is not of such a nature that, in my opinion, we ought to give special leave, assuming that the order of the Full Court falls within this court's appellate power.

In my opinion the appeal should be dismissed as incompetent and special leave should be refused.

The appellant, Webb, has purported to prosecute as of right an appeal to this court from a judgment of the Full Court of the Supreme Court of Queensland which was pronounced in the matter of an election petition brought by Webb against the return of the respondent, Hanlon, as a member of the Legislative Assembly of Queensland.

The Elections Tribunal of the State of Queensland is constituted by a judge of the Supreme Court, whose duty it is to hear and determine all election petitions during the year of his term of office as elections judge. In the present case the Elections Tribunal, constituted by E. A. Douglas J., declared that the respondent, Hanlon, was not duly elected at a Legislative Assembly election in the electoral district of Ithaca. Thereupon the respondent, Hanlon, appealed to the Full Court of the Supreme Court of Queensland, which under sec. 118 of the Elections Act is invested with jurisdiction to hear appeals from all decisions upon questions of law given by the judge constituting the Elections Tribunal. The Full Court upheld the appeal and remitted the matter to the Elections Tribunal with a direction that the petition should be dismissed.

Hanlon as respondent named in the notice of appeal to this court has now applied to set aside such notice of appeal upon the ground that no appeal lies from any judgment of the Full Court in matters such as the present and that, even if an appeal might be brought in an appropriate case, the present question does not involve a civil right of the value of £300 (Judiciary Act 1903-1937, sec. (1) (a) (2)), so that there is no appeal as of right.

The respondent Hanlon first contends that the Full Court of the Supreme Court of Queensland sitting under sec. 118 of the Elections Act is not the "Supreme Court" of that State within the meaning of sec. 73 (ii.) of the Commonwealth Constitution, upon the ground that while so acting the Full Court is a special tribunal which merely happens to be constituted by the judges of the Supreme Court. The contention—put alternatively—is that the ruling of the judges upon appeal "is not a decision of the Supreme Court within the meaning of sec. 73 of the Constitution," to use a phrase from the judgment of Griffith C.J. in Holmes v. Angwin[34].

So far as the Elections Tribunal itself is concerned, I agree that its judgment and order is not a judgment or order of the Supreme Court within the meaning of sec. 73 of the Constitution despite the fact that it is constituted by a judge of the Supreme Court. This opinion is based upon the decision of this court in Holmes v. Angwin[35] to which I recently referred in Medical Board of Victoria v. Meyer[36]. The West-Australian statute considered in Holmes v. Angwin[37] directed that the Elections Tribunal should be guided by the substantial merits and good conscience of each case without regard to legal forms and technicalities. Sec. 111 of the Elections Acts of Queensland 1915 to 1936 confers an analogous mandate upon the Elections Tribunal. In each case the provision gives emphasis to the administrative as distinct from the judicial character of the special tribunal. The only decision which would suggest that an appeal might lie from the Queensland tribunal direct to this court is Medical Board of Victoria v. Meyer[38]. Under the Victorian statute there interpreted the Supreme-Court judge was invested with a jurisdiction which included the determination of administrative questions involving discretion and policy which are quite foreign to the ordinary realm of judicial functions. However, this court held that an appeal could be brought to this court. In view of the more direct enunciation of principle in the earlier case of Holmes v. Angwin[39], I think it should be held that the decision of the Elections Tribunal of Queensland is not appealable to this court.

II.

But it does not follow that the Full Court's jurisdiction under sec. 118 is of the same character as that of the Elections Tribunal. Holmes v. Angwin[40] related solely to a decision of the Court of Disputed Returns in West Australia, and Higgins J. relied to some extent upon the fact that, under the Western Australian Act, no appeal to the Full Court could be brought from the decision of the Elections Court. Under sec. 118 of the Queensland Act the tribunal which hears the appeal is the "Full Court," which prima facie means the Full Court of the Supreme Court acting as such. Further, as the appeal is confined to questions of law, the Full Court's judgment is necessarily confined to questions of legal interpretation.

Instances can be found where an administrative tribunal has been established under State legislation but upon questions of law jurisdiction has been conferred upon the Supreme Court of a State. In such case the latter's functions are strictly judicial, and, providing other conditions are satisfied, an appeal may be brought to this court. An illustration is Victorian Railways Commissioners v. McCartney and Nicholson[41]. Rich and Dixon JJ. thus referred to the section of the Victorian Act conferring jurisdiction upon the Supreme Court:—

In the opinion of the Supreme Court that section does not empower it to exercise upon review the administrative discretion committed to the Transport Regulation Board. The provision has been construed in such a way that the Supreme Court obtains under it no power which is not strictly of a judicial nature. No one impugns this construction, and we willingly accept it as a satisfactory escape from the bewilderment which the text of the provision produces. As a result, the order made in the exercise of the authority conferred by the section so interpreted is one which falls within the appellate jurisdiction of this court[42].

In 1926, the New South Wales legislature set up a Workers' Compensation Commission, which was directed by sec. 36 (3) of the Act to decide "upon the real merits and justice of the case" and was not "bound to follow strict legal precedent." But the legislature at first permitted and later required the commissioner to obtain the guidance of the Supreme Court upon questions of law; and in Smith v. Mann[43] it was held by this court that the decision of the Supreme Court upon a case stated by the Workers' Compensation Commission was not merely an advisory or consultative opinion but a judgment from which an appeal might be brought to this court.

In my opinion there is nothing to preclude an appeal to this court from a decision of the Supreme Court of Queensland pronounced under sec. 118 of the Elections Acts of that State.

III.

The next question is whether the judgment of the Full Court of Queensland is, within the meaning of sec. 35 (1) (a) (2) of the Judiciary Act, a judgment involving any question respecting a civil right of the value of £300.

Under the constitutional provisions of the State of Queensland every member of the Legislative Assembly becomes entitled to payment of £650 per annum for his services in the discharge of parliamentary duties. It may perhaps be conceded that the right of the present respondent, Hanlon, to sit in Parliament as a member of the Assembly for the duration of the life of the Assembly—a period up to three years—is capable of being estimated as of the value of £300 or upwards (Coal Cliff Collieries Ltd. v. Austin[44]).

Although the precise interpretation of sec. 35 (1) (a) (2) is not laid down by any specific ruling of the Full Court of this court, the reasoning of Rich J. in Beard v. Perpetual Trustee Co.[45] indicates that for the purpose of determining an appellant's right of appeal the crucial factor is the pecuniary interest of the proposed appellant in the "property" or "civil right." This reasoning seems to find support in the course of decision. In one case a solicitor whose name had been struck off the roll by order of the Supreme Court of New South Wales appealed to this court, where it was held that—having regard to the pecuniary value of the appellant's practice—an appeal lay as of right because the appellant had by the Supreme Court judgment been deprived of a civil right worth more than £300 (Thomas v. Incorporated Law Institute of New South Wales[46]). On the other hand, in the case of Incorporated Law Institute of New South Wales v. Meagher[47], where the respondent had been readmitted to practice as a solicitor and such right was of the value of at least £300 to him[48] this court did not regard the Law Institute as having an appeal as of right. It heard and granted an application by it for special leave, the necessity for which was impliedly asserted by all members of the court.

In this case I think we should hold that, inasmuch as the proposed appellant is not seeking a declaration that he, instead of the respondent Hanlon, is entitled to be declared elected but is claiming only that the decision of the Elections Tribunal nullifying Hanlon's election should be restored, the £300 condition imposed by sec. 35 (1) (a) (2) is not complied with. It follows that, whether the judgment of the Full Court is regarded as final or interlocutory, an appeal can only be had in pursuance of special leave.

IV.

On the whole I think that special leave should not be granted. On this part of the case the decisions in Théberge v. Laudry[49] and Strickland v. Grima[50] tell against the applicant. In Théberge v. Laudry[51] the Judicial Committee denied the existence of the prerogative right to admit an appeal from a judgment of the Superior Court of Quebec. But their Lordships added:—

It is, of course, in this view of the case, unnecessary to consider whether, if there had been a right to admit an appeal, it would have been a case in which, in the discretion of this tribunal, an appeal should be admitted. On that point their Lordships have never entertained any shadow of doubt. They clearly are of opinion that, even if there was the power of admitting an appeal, this is not a case in which an appeal ought to be admitted[52].

I think that the notice of appeal should be set aside and that in all the circumstances the application for special leave to appeal should be refused. At the same time I think that we should guard against its being supposed that we are endorsing the correctness of the judgment of the Full Court of Queensland. So far as the argument before us proceeded, it strongly indicated that Mr. Justice E. A. Douglas as Elections-Tribunal judge was correct in laying down that sec. 111 afforded sufficient warrant for his action in adopting for his guidance the principles, practice and rules upon which the Committees of the House of Commons had acted in dealing with election petitions before the passing of the Parliamentary Elections Act 1868.

The question for decision is whether or not the appeal is competent. The decision of which the appellant complains was made by the Full Court of the Supreme Court of Queensland under the provisions of the Elections Acts 1915 to 1936 of Queensland. The decision was made on appeal from the Elections Tribunal which is established by this Act. This tribunal has, under these provisions, jurisdiction to try controverted parliamentary elections. It exercises a special and peculiar jurisdiction which once belonged to legislative bodies but is now often exercised by judicial functionaries or courts of justice (May, Parliamentary Practice, 10th ed. (1893), pp. 613, 614).

The Elections Tribunal is established by sec. 101 (1) of the above-mentioned Act. It is constituted by a judge of the Supreme Court, who, sitting alone, is empowered to "inquire into and determine" election petitions and questions relating to elections and the qualifications of members which may be referred to him by the Assembly. He sits as a judicial functionary, but not as the Supreme Court. But the Act says that, subject to its provisions, he is to have all the powers, jurisdiction and authority of a judge of the Supreme Court. Upon the trial of an election petition or reference, the tribunal is, as the Act provides, to be guided by the real justice and good conscience of the case without regard to legal forms and solemnities. At the conclusion of the trial of an election petition, the judge is (1) to declare upon the questions of fact and law before him (a) whether the member whose return or election is complained of was duly returned or elected, or (b) whether any person not returned as elected was duly elected, or (c) whether the election was void, or (d) whether any member whose qualification is in question was qualified or disqualified, as the case may require, and (2) to certify in writing such determination to the Speaker. It is provided that, upon such certificate being given, such determination shall be final to all intents and purposes. The Assembly, on being informed by the Speaker of such certificate, is to order it to be entered in the journals of the House and to give the necessary directions for confirming or amending the return, or for issuing a writ for a new election, or for carrying the determination into execution, as circumstances may require.

The nature of the subject matter with which proceedings taken under provisions like these were concerned has been explained in a number of cases. In Théberge v. Laudry[53] Lord Cairns said: "Now the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members." In Strickland v. Grima[54] Lord Blanesburgh, referring to this case, said: "In that case, which dealt, as this does, with questions relating to the membership of legislative bodies, it is pointed out that decisions upon such matters are not decisions of mere ordinary civil rights" In Holmes v. Angwin[55] Barton J. said that "there is a clear line drawn between the decision of the Supreme Court upon an election petition and that judgment, decree, order or sentence which is the object of the provision" (sec. 73) "of the Constitution": See also per Higgins J.[56]. Sec. 118 of the Elections Act 1915, however, provides that an appeal lies to the Full Court from every decision of the judge constituting the Election Tribunal, upon a question of law. It is from the decision of the Full Court given under this section that the appellant seeks to appeal to this court, and it is contended that, even if the decision of the Elections Tribunal is not within this category, such a decision of the Full Court is a judgment, decree, order or sentence within the meaning of sec. 73 of the Constitution. It seems to me that the juridical character of the decision of the Full Court must, no less than the decision of the primary tribunal, be determined by the subject matter of the proceeding. The provision for an appeal to the Full Court does not make any change in the subject matter of the case. As the decision of the Elections Tribunal, whether on a question of law or of fact, is not within the category mentioned in sec. 73, the decision of the Full Court upon appeal from that decision cannot rightly be placed in that category. The appeal to the Full Court is part of or incident to proceedings which do not follow "the course of ordinary law" (Kennedy v. Purcell[57]). It cannot be said that, because the State legislature has provided an appeal to the Full Court from a decision of the Elections Tribunal, a decision of the Full Court, given in the exercise of this jurisdiction, attracts, regardless of the subject matter with which it is concerned, the appellate jurisdiction of this court.

For these reasons I think that, if the court were to entertain this appeal, it would meddle in a matter with which it has no right under the Constitution to concern itself. In my opinion the appeal is incompetent and the notice of appeal should be set aside, and for the reasons I have stated this court has no power to grant leave or special leave to appeal.

Motion to set aside notice of appeal allowed. Applications for leave and special leave to appeal refused. Liberty to parties to apply on the question of costs. Matter will be put in the list for this purpose later in these sittings.

The appellant to pay to the respondent the costs of the motion to set aside the notice of appeal, and the costs (if any) of the applications for leave and special leave to appeal.

[1] [1906] HCA 64; (1906) 4 C.L.R. 297

[2] [1937] HCA 47; (1937) 58 C.L.R. 62.

[3] [1932] HCA 30; (1932) 47 C.L.R. 426.

[4] [1935] HCA 28; (1935) 52 C.L.R. 383.

[5] [1909] HCA 1; (1909) 7 C.L.R. 598.

[6] [1918] HCA 31; (1918) 25 C.L.R. 1.

[7] [1911] HCA 42; (1911) 13 C.L.R. 248

[8] [1934] HCA 16; (1934) 50 C.L.R. 314.

[9] [1936] HCA 67; (1936) 56 C.L.R. 221.

[10] (1906) 4 C.L.R. at p. 304.

[11] (1877) 3 C.P.D. 67, at p. 71.

[12] (1903) 19 T.L.R. 152.

[13] [1918] HCA 31; (1918) 25 C.L.R. 1, at p. 8.

[14] [1906] HCA 64; (1906) 4 C.L.R. 297.

[15] [1906] HCA 64; (1906) 4 C.L.R. 297.

[16] (1876) 2 App. Cas. 102.

[17] [1906] HCA 64; (1906) 4 C.L.R. 297.

[18] (1906) 4 C.L.R., at p. 302.

[19] (1906) 4 C.L.R., at p. 306.

[20] (1906) 4 C.L.R., at p. 309.

[21] [1906] HCA 64; (1906) 4 C.L.R. 297.

[22] [1906] HCA 64; (1906) 4 C.L.R. 297.

[23] [1934] HCA 16; (1934) 50 C.L.R. 314.

[24] (1934) 50 C.L.R., at pp. 315, 316.

[25] [1862] EngR 406; (1862) 15 Moo. P.C.C. 181; 15 E.R. 462.

[26] (1888) 13 App. Cas. 780.

[27] (1919) V.L.R. 484; 41 A.L.T. 17.

[28] (1919) V.L.R., at p. 486; 41 A.L.T., at p. 18.

[29] [1918] HCA 31; (1918) 25 C.L.R. 1, particularly at pp. 7, 8.

[30] [1911] HCA 42; (1911) 13 C.L.R. 248.

[31] [1918] HCA 31; (1918) 25 C.L.R. 1.

[32] [1906] HCA 64; (1906) 4 C.L.R. 297.

[33] [1906] HCA 64; (1906) 4 C.L.R. 297.

[34] (1906) 4 C.L.R., at p. 307.

[35] [1906] HCA 64; (1906) 4 C.L.R. 297.

[36] (1937) 58 C.L.R., at p. 105.

[37] [1906] HCA 64; (1906) 4 C.L.R. 297.

[38] [1937] HCA 47; (1937) 58 C.L.R. 62.

[39] [1906] HCA 64; (1906) 4 C.L.R. 297.

[40] [1906] HCA 64; (1906) 4 C.L.R. 297.

[41] [1935] HCA 28; (1935) 52 C.L.R. 383.

[42] (1935) 52 C.L.R., at p. 388.

[43] [1932] HCA 30; (1932) 47 C.L.R. 426.

[44] [1919] HCA 77; (1919) 27 C.L.R. 355.

[45] [1918] HCA 31; (1918) 25 C.L.R. 1, at pp. 7, 8.

[46] (1929) 3 A.L.J. 32.

[47] [1909] HCA 87; (1909) 9 C.L.R. 655.

[48] (1909) 9 C.L.R., at p. 678.

[49] (1876) 2 App. Cas. 102.

[50] (1930) A.C. 285.

[51] (1876) 2 App. Cas. 102.

[52] (1876) 2 App. Cas. at pp. 108, 109.

[53] (1876) 2 App. Cas., at p. 107.

[54] (1930) A.C., at p. 296

[55] (1906) 4 C.L.R., at p. 309.

[56] (1906) 4 C.L.R., at p. 309.

[57] (1888) 59 L.T. 279, at p. 281.

High Court of Australia

Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313 (31 March 1939)

HIGH COURT OF AUSTRALIA