President of India v Moor Line Ltd (No 2) [1958] HCA 25; (1958) 99 CLR 212 (15 May 1958)

HIGH COURT OF AUSTRALIA

THE PRESIDENT OF INDIA v. THE MOOR LINE LTD. (NO. 2) [1958] HCA 25; (1958) 99 CLR 212

Arbitration

High Court of Australia
Dixon C.J.(1), Williams(1), Webb(1), Fullagar(1) and Taylor(1) JJ.

CATCHWORDS

Arbitration - Special case stated by arbitrator for opinion of Supreme Court - Costs - Jurisdiction of Supreme Court to award - Arbitration Act 1928 (Vict.) No. 3637, s. 19.

HEARING

Melbourne, 1955, March 15; 1958, May 15. 15:5:1958
APPEAL from the Supreme Court of Victoria.

DECISION

1958, May 15.
The Court delivered the following written judgment:-
In this litigation the substance of which we have decided in the judgments which it is necessary to dispose. The umpire stated a case for the opinion of the Supreme Court. Under the law of Victoria such an opinion is of an advisory nature: see In re C.T. Arbitration between Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 ; Cogstad & Co. v. H. Newsum, Sons & Co. Ltd. (1921) 2 AC 528 . The case stated came before O'Bryan J. whose opinion was against the shipowners. The shipowners appealed to the Full Court of the Supreme Court of Victoria. As the opinion was advisory no such appeal lay in point of law. The point that no appeal lay was not, however, taken in the Full Court and the Full Court pronounced an order reversing the order of O'Bryan J. The order of O'Bryan J. had awarded the costs of the proceedings before him to the charterer. In fact he had no jurisdiction to award costs. It had been so decided in In re Arbitration between Groutch and State Rivers and Water Supply Commission (1913) VLR 455 . But his attention was not drawn to this decision. The order of the Full Court reversed his order and awarded the costs of the proceedings both before O'Bryan J. and in the Full Court to the shipowners. On 12th October 1954 the charterer obtained from this Court special leave to appeal from the order of the Full Court of the Supreme Court. The appeal came on for hearing before this Court on 15th March 1955. The Court there pointed out that the proceedings had been misconceived. An order was thereupon made adjourning the appeal then before this Court and reserving the costs. (at p214)

2. We have considered how these proceedings should be disposed of. We think in all the circumstances that the right course for this Court to take is to allow the appeal from the Full Court of the Supreme Court, discharge the order of that court and in lieu thereof set aside so much of the order of O'Bryan J. as awards costs to the charterer. Over the rest of the order of O'Bryan J. we have no jurisdiction. The order for costs is, of course, a judicial order and we may therefore set it aside. We do so following Groutch's Case (1913) VLR 455 . The rest of his order is advisory and is not appealable. It therefore must remain untouched although the opinion his Honour expressed is not in conformity with the judgments we have just pronounced. (at p214)

ORDER

Allow appeal from the order of the Full Court of the Supreme Court of Victoria of 28th September 1954. Discharge such order. In lieu order that so much of the order of O'Bryan J. dated 4th June 1954 be discharged as deals with costs.

No order as to costs in this Court or in the Supreme Court.