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High Court of Australia |
CALTEX OIL (AUSTRALIA) PTY. LTD. v. X.L. PETROLEUM (N.S.W.) PTY. LTD. [1984] HCA 2; (1984) 155 CLR 72
Constitutional Law
High Court of Australia
Gibbs C.J.(1), Mason(1), Murphy(2), Wilson(1), Brennan(3), Deane(4) and
Dawson(1) JJ.
CATCHWORDS
Constitutional Law - Privy Council - Appeal - Application by defendant for leave to appeal to Privy Council from Supreme Court of New South Wales - Later appeal by plaintiff to High Court - Competence of application for leave - Whether appeal to Privy Council inconsistent with right of appeal to High Court - Australian Courts Act 1828 (Imp.) - Judicial Committee Act 1844 (Imp.) - The Constitution (63 & 64 Vict. c. 12), s. 73.
HEARING
1983, May 11, 12; 1984, February 9. 9:2:1984DECISION
1984, February 9.2. In our opinion, Caltex is entitled as of right to appeal to the Judicial Committee of the Privy Council. It follows from that conclusion that, in accordance with the provisions of the Order in Council regulating appeals to Her Majesty in Council from the Supreme Court of New South Wales (No. 1521 of 1909, dated 2 April 1909), the present application for conditional leave to prosecute that appeal must be granted. Notwithstanding the potential difficulties that could flow from the pendency at the same time of the appeal by X.L. to this Court, the Order in Council to which we have referred does not allow any discretion to the Supreme Court to refuse the application. (at p77)
3. It is possible to express quite shortly the reasons which lead us to the conclusion we have stated. Much of the ground which might otherwise have been in issue between the parties has been covered, and covered authoritatively, by the recent decision of this Court in Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; (1979) 145 CLR 246. In that case, Gibbs J. (as he then was), with whose reasons Barwick C.J., Stephen, Mason, Aickin and Wilson JJ. agreed, held that the Judicial Committee Act 1844 (Imp.), and the Order in Council dealing with appeals from the Supreme Court of South Australia, remained in force in relation to South Australia and that appeals might be brought as of right to the Judicial Committee from a decision of the Supreme Court of that State in any matter, not involving the exercise of federal jurisdiction, which satisfied par. 2(a) of the Order in Council. Murphy J. dissented. The Order in Council which was relevant to that case is substantially similar in its terms to the Order in Council relating to New South Wales. (at p77)
4. In Southern Theosophy, Gibbs J. had occasion to consider an argument that
the enactment of the Privy Council (Limitation of Appeals) Act 1968 (Cth) and
of the Privy Council (Appeals from the High Court) Act 1975 (Cth) in some way
brought an end to appeals to the Judicial
Committee from the Supreme Courts of
the States. His Honour observed that those statutes dealt only with appeals
from this Court
and had nothing to do with appeals from the Supreme Courts of
the States. He then continued (1979) 145 CLR, at pp 260-261:
"It does not follow from the fact that no appeal can now be
brought from any decision of this Court to the Privy Council
(except, theoretically, if a certificate under s. 74 has been given
in a matter involving an inter se question) that no appeal can be
brought from the Supreme Court to the Privy Council. There is
simply no reason in law or in logic for drawing that conclusion.
It may indeed be thought anomalous and inconvenient that
there should be two ultimate courts of appeal from the Supreme
Courts, and that the unsuccessful litigant should be able to
choose his court of last resort. The possible difficulties and
complications were discussed in Viro v. The Queen
[1978] HCA 9; (1978) 141 CLR 88.
However, inconvenience provides no reason to ignore legal
principle, and we have no power to declare rights non-existent
simply because it seems anomalous that they should exist." (at p78)
5. The present case exhibits one of the more unusual complications that can
arise from the adoption of a piecemeal approach to the
abolition of appeals to
the Judicial Committee from Australian courts. Caltex, consistently with
previous practice and authority,
elects to exercise its apparent right to
appeal from a decision of the Supreme Court of New South Wales to the Judicial
Committee.
On the other hand, X.L., also desiring to appeal from the same
decision, elects to exercise its apparent right by way of an appeal
to this
Court. The question which arises in these circumstances is whether the
apparent right which is claimed by each party really
exists and, if so, what
should be the fate of the present application. (at p78)
6. The argument of substance which is pressed by X.L. against Caltex and supported by the learned Solicitor-Generals of the Commonwealth and New South Wales is that there is a necessary inconsistency inherent in the coexistence in the same cause of an appeal to this Court and an appeal to the Judicial Committee. That inconsistency is to be resolved, so it is submitted, by tracing each right of appeal to its respective statutory source and upholding that appeal which derives from the later enactment. The application of that principle identifies the Australian Courts Act 1828 (Imp.) and the Judicial Committee Act 1844 (Imp.) as the source of the claimed right of appeal to the Judicial Committee and s. 73 of the Australian Constitution as the source of the right of appeal to this Court. The last-mentioned statute being the latest enactment, it is argued that the jurisdiction thereby provided must prevail and the present application must be refused. (at p78)
7. The Solicitor-General of the Commonwealth relies upon decisions of this Court which recognize, in the event of conflict, that the Australian Constitution and legislation of the Commonwealth Parliament enacted pursuant to that Constitution are paramount over earlier inconsistent Imperial legislation relating to the jurisdiction of the Judicial Committee: The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69, at pp 95-96 The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley [1926] HCA 8; (1926) 37 CLR 393, at p 414. Such a proposition cannot be doubted. However, the problem in the present case is to discern the existence of any relevant inconsistency. It will be observed that the two cases we have cited were concerned with the effect of the Constitution and the Judiciary Act in relation to the determination of appeals in cases involving the exercise of federal jurisdiction. Indeed, in our view, Limerick Steamship affords clear support for the proposition that the Constitution does not interfere with the access provided by the earlier Imperial legislation from the Supreme Courts of the States to the Judicial Committee in matters of State judicial power (1924) 35 CLR, at pp 83, 93, 94-96, 115-116. The central point supporting such a view was that the judicial power of the Commonwealth was not involved in such a case. If this was the position in 1924, as we think it was, it is difficult to see how it could have changed since that time. (at p79)
8. Dixon J. thought that the mere coexistence of rights of appeal to different courts from the one judgment gave rise to inconsistency. He considered that the coexistence of federal and State jurisdiction with respect to the same subject-matter could only be explained by reference to "the special nature of the legislative authority arising from s. 77(ii.) and (iii.) of the Constitution":Ffrost v. Stevenson [1937] HCA 41; (1937) 58 CLR 528, at p 573. However, there are many instances in which the coexistence of rights of appeal to different courts of appeal has not been thought to create an inconsistency. When appeals from the one judgment are taken to two courts, judicial comity requires either that the appeal to the lower appellate court in the hierarchy be withdrawn so as to enable the higher court to exercise its appellate jurisdiction or that the appeal to the lower court proceed on the footing that it is the order of that court, not the order of the court below, that is the subject of appeal to the higher appellate court: see generally Wishart v. Fraser (1941) 64 CLR 470; R. v. Poole; Ex parte Henry [1938] HCA 63; (1938) 61 CLR 1; Blacker v. Parnell (1978) 1 NSWLR 616; Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133; A. & V. Bence Pty. Ltd. v. Voets Investments Pty. Ltd. (1963) 63 SR (NSW) 1016. Determination of the appeal to the lower appellate court would, especially if successful, displace the order from which the appeals are brought and thus undermine the appeal taken to the higher court. (at p79)
9. All this is by way of background, for the Constitution itself contemplated the coexistence of an appeal to the Judicial Committee and to this Court from the judgments and orders of the Supreme Courts of the States. Section 73 provided for the appeal to this Court and the proviso to that section recognized the existence of the appeal to the Judicial Committee from the Supreme Courts of the States. Of course these provisions formed part of a framework in which the appeal from the High Court to the Judicial Committee, qualified by the necessity for a certificate in relation to inter se questions, formed an important element. Southern Theosophy [1979] HCA 59; (1979) 145 CLR 246 makes the point that in this situation there was no inconsistency arising from the coexistence of the two rights of appeal. (at p80)
10. In order to consider the correctness of the more limited argument presented by X.L. and the interveners we must examine the consequences of the taking of appeals to this Court and the Judicial Committee from the one judgment of a Supreme Court. If we were to suppose that at some time between Federation and the coming into operation of the Privy Council (Limitation of Appeals) Act each of the parties to a judgment in a Supreme Court prosecuted an appeal to judgment, one in the Judicial Committee and the other in the High Court, a conflict of orders might arise if the judgments were delivered on the same day and the appeal was dismissed in one case and allowed in the other. In the ultimate analysis this theoretical conflict, had it arisen, would have been resolved in favour of the Judicial Committee's order because it stood at the apex of the judicial structure in virtue of its character as a court of appeal from the High Court. If the judgments were delivered on different days other considerations would intrude. The judgment delivered first would undermine the foundation of the other appeal because it would replace the judgment of the court below and become the judgment finally determining the rights of the parties. We reject the submission made by Mr. Bennett Q.C., for Caltex, that the dismissal of an appeal by this Court or by the Judicial Committee leaves on foot the order of the court below so that it is still extant for the purposes of an appeal to another appellate court. That it is still extant for some purposes, such as execution, may be admitted without advancing Mr. Bennett's argument. What is important for present purposes is that the order of the court below is no longer the relevant final and authoritative determination of the parties' rights. (at p80)
11. The problems discussed in the previous paragraph are entirely theoretical and may be put aside. They have not arisen in practice for the very good reason that the suggested conflict of orders could not have occurred because the doctrine of judicial comity would have required the High Court to take such action as it considered appropriate to avoid concurrent hearings. (at p80)
12. The crucial question is whether the elimination of the appeal from this Court to the Judicial Committee by the two Acts already mentioned brings about a different result. The hierarchical relationship between this Court and the Judicial Committee has disappeared with the termination of the appeal. A contemporaneous order of the Judicial Committee would not prevail over an order of this Court with respect to the same subject-matter. (at p81)
13. If we take the example supposed earlier and translate it to the present day it is evident that a theoretical conflict would not be resolved in the same way - the Judicial Committee order would not have the same claim to primacy over an order of this Court. But in other respects the comments made earlier would apply with equal force. Adherence to the doctrine of judicial comity would ensure that neither this Court nor the Judicial Committee would proceed concurrently with the hearing of an appeal, let alone proceed to judgment, when the other was embarking, or about to embark, upon a hearing of the appeal brought to it. (at p81)
14. To say this involves no deprivation of a constitutional right to appeal to this Court. Indeed, in this context to speak of such a constitutional right serves to confuse rather than to clarify. As we have seen, the Constitution provides for and recognizes a right of appeal both to this Court and to the Judicial Committee from the judgments of the Supreme Courts of the States. What has already been said in demonstrating the absence of any inconsistency or repugnancy is no more than a reflection of the accepted principles applicable to a situation where there exists a right of appeal to two courts from the one judgment. (at p81)
15. Lest they escape unnoticed, we should draw attention to some anomalies inherent in the view that the Judicial Committee has no jurisdiction to hear Caltex's proposed appeal on the ground that the Constitution and the later Acts have in some way worked a pro tanto repeal or implied amendment of the earlier Imperial legislation conferring jurisdiction on the Judicial Committee. The proposition would have to accommodate the situation where the appeal to this Court is abandoned or dismissed for want of prosecution. Presumably in that event any inconsistency or repugnancy disappears and access to the Judicial Committee may be restored, although the passage of time may well have extinguished the right. Such a result is hardly satisfactory. Furthermore, the operation of the proposition becomes even more disturbing if one postulates a case where the appeal to the Judicial Committee proceeds to the stage where, following argument, their Lordships reserve their decision and then either party, perceiving some advantage to be gained by another hearing, institutes an appeal in this Court. If the mere coexistence of the two appeals creates an inconsistency which works an implied repeal or amendment of the earlier enactment then it must follow that the proceedings in the Judicial Committee are aborted by the eleventh hour action, whether genuine or not, in this Court. (at p81)
16. In the situation we have supposed, the party seeking to institute an appeal in this Court would require special leave to appeal because he would be out of time. Refusal of special leave would avoid the suggested inconsistency and loss by the Privy Council of the jurisdiction which it possessed initially and was in the course of exercising. However, and this is the important point, it would be sufficient to base the refusal of special leave on the doctrine of judicial comity. The applicant could not require the Court to deal with the application on the merits by reference to any principle of paramountcy. (at p82)
17. It is argued on behalf of Caltex that both appeals should be allowed to take their course, leaving the parties free to pursue their respective rights to the fullest extent possible. In this regard, counsel for Caltex foreshadowed that in the event of conditional leave being granted Caltex would seek a stay of the appeal to the High Court pending the conclusion of the proceedings in the Judicial Committee, on the ground that the subject-matter of the later appeal could conveniently be determined first. He relies on the circumstance that, as at present framed, the two appeals raise different issues. Caltex seeks to litigate in the Judicial Committee the question of principle whether in the circumstances of the case the award of exemplary damages can stand. On the other hand X.L. confines its appeal to this Court to the question of the quantum of damages. The assumption is made that no steps will be taken to enlarge the issues in either case. It is then suggested that if the appeal to the Judicial Committee proceeds and the question of principle is determined against Caltex then the way is open for this Court to deal with the question of quantum. It is, however, conceded that if Caltex were to succeed in the Judicial Committee, X.L. could not proceed with its appeal to this Court. (at p82)
18. In our opinion the argument that by any combination of events both appeals could be prosecuted to an effective conclusion is quite untenable. As we have noted, the determination of one appeal, whether by the affirmation, reversal or variation of the decision appealed from, removes the subject-matter of the other appeal: see Wishart [1941] HCA 8; (1941) 64 CLR 470 and Blacker (1978) 1 NSWLR 616. For example, if the appeal to this Court proceeds to finality the judgment of the Court of Appeal will be either affirmed or varied. In either case the resulting judgment will, in the words of s. 73 of the Constitution, be "final and conclusive", and it will occupy the entire ground that was covered originally by the decision of the Court of Appeal. Similarly, if the Judicial Committee delivers judgment on the appeal before the appeal to this Court is determined, the latter appeal becomes futile. (at p82)
19. We should not, and cannot, speak for the Judicial Committee. But we can say with confidence that it is inconceivable that this Court and the Judicial Committee would proceed concurrently to hear appeals from the one judgment of the Supreme Court of a State. For our part, we should proceed with the appeal instituted in this Court in accordance with the established principle that this Court is in the ordinary course of the administration of justice the final court of appeal for Australia (cf. Ebert v. Union Trustee Co. of Australia Ltd. [1961] HCA 29; (1961) 105 CLR 327, at p 331) and that considerations fo time and cost favour the early prosecution of the appeal to this Court. (at p83)
20. What order should we then make on the application for conditional leave to appeal which has been removed into this Court? The discretionary content in the jurisdiction to grant or refuse leave is limited to the imposition of the conditions contemplated by par. 5 of the Order in Council. It does not extend, for example, to the imposition of conditions as to costs as suggested by X.L. (at p83)
21. In the circumstances of this case, having disposed of the constitutional question which generated the removal into this Court it is appropriate that we remit the application to the Court of Appeal to be dealt with by that Court. It is the court in the State system which exercises jurisdiction in applications for conditional leave to appeal to the Judicial Committee. It can deal with the matter in light of the judgment of this Court. It would be inappropriate, we think, that this Court should exercise jurisdiction in an application for conditional leave to appeal to the Judicial Committee when this Court has decided to proceed with an appeal from the same judgment. (at p83)
22. In the result we would remit the application to the Court of Appeal. (at p83)
MURPHY J. In Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; (1979) 145 CLR 246, this Court, over the contentions of the Governments of South Australia and the Commonwealth, held that appeals lie to the Privy Council from judgments of the Supreme Court of South Australia exercising State jurisdiction. I dissented, and adhere to the opinion that all appeals to the Privy Council have ended, so that this application for leave should be refused as incompetent. However, on the assumption that such appeals can lie from the Supreme Court of New South Wales, the question posed here in whether an appeal lies to the Privy Council when an appeal from the judgment has been instituted in this Court. (at p83)
2. The appeal to this Court by X.L. Petroleum invokes the judicial power of the Commonwealth, which is vested in this Court and in other federal courts created by the Parliament and in other courts which the Parliament invests with federal jurisdiction: Constitution, s. 71. (at p84)
3. The appellate jurisdiction of this Court including appeals to this Court from State Supreme Courts is conferred by s. 73 of the Constitution which gives jurisdiction "with such exceptions and subject to such regulations as the Parliament prescribes" and states that "the judgment of the High Court in all such cases shall be final and conclusive". (at p84)
4. This Court, in its first reported judgment (which was delivered by Griffith C.J.), said that the right of appeal from State Supreme Courts to the High Court, "being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament, or in any way except by actual legislation prescribing exceptions" (my emphasis): Hannah v. Dalgarno [1903] HCA 1; (1903) 1 CLR 1, at p 11. The Parliament has not prescribed any exception which relates to this case. The provisions of the Judiciary Act 1903, which regulate such appeals, prevail over any inconsistent State law (see Constitution, s. 109). (at p84)
5. Caltex has cross-appealed. On the appeal, the Court may "affirm reverse or modify", or "give such judgment as ought to have been given" in the court below: Judiciary Act, s. 37. The grounds of appeal or cross-appeal may be enlarged or reduced. The appeal puts the whole matter in the disposition of this Court, and the judgment on appeal whether allowing or dismissing the appeal, replaces the judgment below. The fact that the appeal to this Court may be dismissed for want of prosecution or otherwise is immaterial, because whatever the Court's disposition of the case, the final judgment is that of this Court. The submission by Caltex that dismissal of an appeal leaves intact the judgment of the court appealed from, is erroneous. After this Court's judgment on appeal, any purported appeal from the Supreme Court's judgment would be incompetent because that judgment would no longer exist. (at p84)
6. This Court may award execution of its judgment on appeal or remit the case to the Supreme Court for that court to execute it in the same manner as if it were its own judgment: Judiciary Act, s. 37. (at p84)
7. As Caltex frankly concedes, the purpose of its application for leave to appeal from the Supreme Court to the Privy Council is to undermine the appeal to this Court. The High Court and the English courts have diverged on the question of liability for exemplary damages and Caltex considers that its prospects of a favourable ruling would be higher in the Privy Council than in this Court. If on such an appeal the Privy Council were to give judgment, whether allowing or dismissing the appeal, its judgment would displace the Supreme Court's judgment, even if in form it simply affirmed the judgment or dismissed the appeal. The consequence would be that the appeal already instituted in this Court would be incompetent; there would be no Supreme Court judgment from which to appeal. Such a result is obviously inconsistent with the express words of s. 73 of the Constitution. It would deprive the appellant of its constitutional right to appeal to this Court. (at p85)
8. During argument, a number of contentions were aired. One was that the question was one of comity of courts, which should be resolved by one of the competing tribunals exercising discretion to avoid conflict. But this Court has no discretion to deprive a litigant of his or her constitutional right to appeal. By the Constitution (s. 73) the power to make exceptions to the right of appeal is vested in Parliament, not the courts. (at p85)
9. Another contention was that the applicable doctrine was res judicata, so that whichever appellate tribunal decided the legal issue of Caltex's liability to exemplary damages, the decision would be binding on the parties, and on the other appellate tribunal. In my opinion the doctrine is beside the point because the real question is whether an appeal to this Court which in terms of the Constitution and the Judiciary Act is competent, can be rendered incompetent by proceedings in the Privy Council under the Acts regulating appeals to the Privy Council which antedated the Commonwealth of Australia Constitution Act. Those nineteenth century United Kingdom Acts and the Order in Council of 1909 made under them, to the extent that they permit any appeal to the Privy Council when an appeal has been instituted to this Court, are clearly inconsistent with the Constitution and the Judiciary Act. Where there is such an inconsistency the Constitution and the Judiciary Act prevail: The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley [1926] HCA 8; (1926) 37 CLR 393; The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69. (at p85)
10. It was also contended that a decision of the Privy Council based on a contrary view of the law than that taken by the Supreme Court is analogous to and no more undermines an appeal to the High Court than would a retrospective legislative alteration of the law applied by the Supreme Court. The analogy is false. Any proceeding which might interfere with the appellate process of the High Court, with its jurisdiction to give a final and conclusive judgment is inconsistent with the Constitution. An Act which alters the applicable law does not so interfere. If the law is altered retrospectively by legislation the Court's judgment would be intact, even if in legal theory, erroneous. If the judgment were that of a State Supreme Court an otherwise competent appeal to this Court would remain competent. The postulated appeal to the Privy Council would on the contrary displace the Supreme Court judgment thus removing the basis of any appeal to this Court. (at p86)
11. During argument, some criticism was directed at the legislatures of New South Wales and the Commonwealth for not taking action to end the absurdity of Privy Council appeals from State courts. However, in 1979 the Legislative Assembly and the Legislative Council of New South Wales passed, without dissent, the Privy Council Appeals Abolition Bill 1979. The purpose of the Bill was to abolish all appeals to the Privy Council from courts of New South Wales. The New South Wales Parliament consists of the Queen, the Legislative Council and the Legislative Assembly. Usually the Governor assents on behalf of the Queen. This Bill was reserved for Her Majesty's assent (presumably because this was thought necessary by reason of s. 31 of the Australian Constitution Act 1842 (U.K.)). The Queen has not assented to the measure, apparently because of interference in the legislative process by the British Government. British Ministers have no role in the legislative process of the States of Australia. Interference by any British Minister in this legislative process is a violation of the rights of the Legislative Council and Assembly and of the democratic rights of the people of New South Wales to make their own laws. (at p86)
12. Any view that the Queen or her representative should not be asked to assent to a Bill because a British Minister doubts its constitutionality is inconsistent with proper constitutional procedures. It is of course common in Australia for federal and State Parliaments to enact laws which are of doubtful constitutionality. The doubts are resolvable by the exercise of the judicial power. It would be quite wrong for the Governor-General or a State Governor to decline to assent to a measure because he or she was persuaded that it was unconstitutional or of doubtful constitutionality. That would deny the legislators the opportunity to make a law which, despite the Vice-Regal view, might be held valid by the courts. Similar considerations apply if the Bill is reserved for Her Majesty's assent. Australians are accustomed to definite and reasoned opinions by a narrow majority in this Court that an Act is perfectly valid accompanied by definite and reasoned opinions by the minority that the Act is completely invalid. This illustrates the fallibility of opinions on such questions. The constitutionality of Acts, federal or State, is for judicial decision. Pretensions that Australian courts cannot decide such questions should not be entertained seriously. (at p87)
13. The Australian parliament has ample legislative powers to abolish appeals or purported appeals to the Privy Council from State courts. (at p87)
14. This Court has been slow to accept that the States are no longer colonies of the British Empire, but are constituent parts of the Commonwealth of Australia which is an independent nation in the international community, equal in status and not subordinate to the United Kingdom. To grant leave to appeal to the Privy Council in respect of a Supreme Court judgment which is already under appeal in this Court is a violation of the constitutional right of the appellant X.L. Petroleum to have its appeal heard without external interference. (at p87)
15. Leave to appeal should be refused as incompetent. (at p87)
BRENNAN J. X.L. Petroleum (N.S.W.) Pty. Ltd. recovered a judgment for $405,527.90 damages with interest in an action for trespass against Caltex Oil (Australia) Pty. Ltd. in the Supreme Court of New South Wales. The judgment was entered upon a jury's verdict which included an award of $400,000 as exemplary damages. On appeal, the Court of Appeal reduced the amount of the judgment to $155,527.90 with interest including $150,000 exemplary damages. Caltex applied to the Court of Appeal for conditional leave to appeal to the Privy Council pursuant to the Order in Council of 2 April 1909 which prescribes the rules governing appeals to Her Majesty in Council from the Supreme Court (the N.S.W. Rules). On appeal to the Privy Council, Caltex proposes to seek a further reduction in damages contending that the Court of Appeal was wrong to include in the award any sum for exemplary damages. (at p87)
2. Caltex filed its notice of motion seeking the grant of conditional leave to appeal on 14 December 1982. Caltex's appeal to the Privy Council lies as of right: the N.S.W. Rules, r. 2(a). On 15 December 1982 X.L. filed a notice of appeal to this Court seeking an order setting aside the judgment of the Court of Appeal and restoring the original judgment or, alternatively, the reassessment of exemplary damages by this Court. X.L.'s appeal to this Court lies as of right (Judiciary Act 1903, s. 35(3)). Caltex subsequently filed a notice of cross-appeal in this Court seeking a further reduction in the assessment of exemplary damages, though the cross-appeal does not challenge the inclusion of some exemplary damages in the award. (at p87)
3. Caltex's application for conditional leave to appeal to the Privy Council was removed to this Court pursuant to s. 40 of the Judiciary Act. The question was argued whether the Privy Council's jurisdiction to hear and determine Caltex's appeal is unaffected by the institution of an appeal to this Court against the same judgment or whether the institution of the appeal to this Court ousts the jurisdiction of the Privy Council. The duplication and difficulties involved in the simultaneous prosecution before different courts of concurrent appeals against the same judgment are obvious. The simultaneous prosecution of such appeals is a reproach to the orderly and efficient administration of justice and to the legislatures which have suffered the concurrent jurisdiction of two final courts of appeal to continue long after this Court became the final court of appeal in all cases decided by it. But these considerations do not determine the question whether the Privy Council's jurisdiction to hear and determine an appeal against the judgment of the Supreme Court is ousted by the institution of an appeal to this Court against the same judgment or, to put the question in another way, whether the Constitution upon its true construction makes the jurisdiction of this Court in such a case exclusive. (at p88)
4. The jurisdiction of this Court to hear and determine appeals from the Supreme Courts of the States is derived from s. 73 of the Constitution which provides, inter alia, that "the judgment of the High Court . . . shall be final and conclusive". Notwithstanding that provision, s. 74 made it possible for a time, with the special leave of the Privy Council, to appeal to that Court from a judgment of this Court (except as to an inter se question where the certificate of this Court is required). But the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth), enacted pursuant to s. 74, removed the possibility of appeals from this Court to the Privy Council. The possibility of appeals on inter se questions had long since become merely theoretical. Those Acts thus took the Privy Council out of the hierarchy of appellate courts at the apex of which this Court now stands, so that the finality and conclusiveness of this Court's judgments on appeal are no longer open to challenge before the Privy Council. (at p88)
5. Neither s. 73 of the Constitution nor the acts mentioned abrogated or limited the jurisdiction of the Privy Council to entertain appeals brought directly from the Supreme Courts of the States, but s. 39(2) of the Judiciary Act vests certain federal jurisdiction in the courts of the States subject to the restriction set out in par. (a) that a decision of a court of a State "whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise". The restriction thus imposed on appeals to the Privy Council from a decision of a Supreme Court of a State in a case involving a federal claim extends to the decision given in the entire proceeding unless perhaps it can be shown that there is some distinct and unrelated non-federal claim: per Stephen, Mason, Aickin and Wilson JJ. in Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. [1980] HCA 32; (1980) 145 CLR 457, at pp 481-482. In cases where no federal jurisdiction is exercised, however, the right of a litigant in the Supreme Court of a State to appeal in cases coming within the particular Order in Council governing appeals from that Court remains: Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; (1979) 145 CLR 246. (at p89)
6. The choice of appellate jurisdictions thus left available to an appellant
from some classes of decisions made by the Supreme
Courts of the States
presents no impediment to the final resolution of a particular case; the court
whose jurisdiction is invoked
by the appellant has power to entertain any
aspect of the matter, however arising, which shows that the decision appealed
from is
erroneous (Ah Yick v. Lehmert [1905] HCA 22; (1905) 2 CLR 593, at p 601) and to
determine the appeal finally and conclusively. It
becomes the duty
of the
Supreme Court from
which an appeal is brought to give effect to any judgment
which might be given on appeal
by this Court
according to its tenor, if
the
appeal should be brought here: Judiciary Act, s. 37; Peacock v. D. M. Osborne
&
Co. [1907] HCA 42; (1907) 4 CLR 1564;
Bayne v. Blake (1908) 5 CLR 497; It is equally the
duty of the Supreme Court
to give effect to any Order in Council made on a
report
by the Judicial Committee, if
the appeal should be brought to the Privy
Council:
the N.S.W. Rules, r. 27; In re Rajah Vassareddy
Lutchmeputty Naidoo
[1852] EngR 812; (1852) 8 Moo PC 115 (14 ER 44). But where an appeal is brought
by one party to
this Court against a judgment
of the Supreme Court
and an appeal is brought by
another party to the Privy Council
against the same judgment, there cannot be
inconsistency
between the
respective orders determining the appeals if both
orders are
to be treated as final and conclusive. The Supreme Court
would be
unable
to give simultaneous effect to inconsistent orders. Inconsistency
between final orders is logically and legally impossible:
if the
orders are
not consistent, at least one of them cannot be final.
As Fletcher Moulton L.J.
said in Doleman & Sons v. Ossett
Corporation
(1912) 3 KB 257, at p 269:
"There cannot be two tribunals each with the jurisdiction to
insist on deciding the rights of the parties and to compel them
to accept its decision." (at p89)
7. Within the same hierarchy of courts, concurrent appeals do not create a
dilemma between consistency and finality, for the judgment
of the highest
court in the hierarchy is the only judgment which cannot be set aside. Where
concurrent appeals are brought from the
decision of a court in a particular
hierarchy to two courts higher in the same hierarchy having appellate
jurisdiction, a procedure
is adopted to prevent the simultaneous existence of
inconsistent judgments. In Australia, the procedure generally adopted has been
a stay by the superior of the appellate courts of the appeal before it pending
the determination of the appeal before the inferior
appellate court. In that
way the superior appellate court is able to avoid the possibility that
inconsistent orders of both appellate
courts might co-exist and to ensure that
the jurisdiction of the superior appellate court can be invoked to entertain
both the appeal
against the first court's decision and an appeal against the
decision of the inferior appellate court and to dispose of both appeals
consistently: see R. v. Poole; Ex parte Henry [1938] HCA 63; (1938) 61 CLR 1. The inferior
appellate court ordinarily proceeds to
hear the appeal
though a concurrent
appeal to the superior
appellate court is pending: O'Sullivan v. Morton (1911)
VLR 235, and cf.
White v. Pacific
Acceptance (No. 2) (1962) SR (NSW) 695,
at p
699. Unless an appeal is brought from the judgment of the inferior
appellate
court to
the superior appellate court, the latter
court regards the inferior
appellate court's judgment as conclusive.
In Wishart v. Fraser
[1941] HCA 8; (1941) 64 CLR
470, at p 483 Dixon J. expressed the view in an appeal against a conviction by
a magistrate that this Court should
regard an order of a Court of Quarter
Sessions which had confirmed that conviction as conclusive
unless that order
were set aside
on appeal. His Honour said:
"In my opinion the answer to that question is that we cannotIn Canada, a different procedure was adopted by the Supreme Court before Privy Council appeals from Canada were abolished. The Supreme Court of Canada stayed appeals before it once an appeal to the Privy Council had been instituted, the judgment of the Privy Council being conclusive of the issues in the Supreme Court: Ashbridge v. Shaver (1925) 4 DLR 1048. (at p90)
ignore the order of the Court of Quarter Sessions confirming
the conviction and that, unless we are satisfied that it was made
without jurisdiction and is totally void, we must regard it as
conclusive while it stands. The proper course for a defendant to
take in such circumstances is to apply under s. 39(2)(c) of the
Judiciary Act for special leave to appeal from the decision of
the Court of Quarter Sessions exercising Federal jurisdiction."
8. However, this Court and the Privy Council are no longer courts in the same hierarchy. No appeal can be brought to either Court from the judgment of the other. Each is a final court of appeal. Finality is of the nature of an appellate judgment of such a court, and each Court so regards its appellate judgments: s. 73 of the Constitution declares the finality of the appellate judgments of this Court, and the finality of Orders in Council which give effect to the judgments of the Judicial Committee is not open to doubt: see Rajundernarain Rae v. Bijai Govind Sing [1836] EngR 1119; (1836) 1 Moo PC 117, at p 126 [1836] EngR 1119; (12 ER 757, at p 760). Even applications to the court pronouncing the judgment to recall or vary it are refused unless an indulgence is granted: State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29 and the Privy Council cases there cited. As an appellate judgment of this Court and a judicial Order in Council are both final, the existence of concurrent jurisdiction in both Courts to determine appeals from the same judgment can be postulated only if inconsistency between their final orders is impossible. The jurisdiction of the Privy Council in concurrent appeals can be accommodated to s. 73 only upon the hypothesis that both the Order in Council and the judgment of this Court are necessarily consistent. Otherwise the jurisdiction of the Privy Council must be held to be ousted - notwithstanding the Imperial Statutes and Orders in Council which define the Privy Council's jurisdiction on appeal from the Supreme Court - in order to accord to the appellate judgments of this Court the final and conclusive character attributed to them by s. 73 of the Constitution. The Constitution, considered as an Imperial Statute, "is not subordinate to, but is pro tanto superior to, the earlier Act, the Judicial Committee Act, passed at an earlier stage of constitutional development": per Isaacs J. in The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley (1926) [1926] HCA 8; 37 CLR 393, at p 414. It cannot be supposed that the Privy Council would take a different view of the ultimate effect of s. 73, although the stage at which, on this hypothesis, the jurisdiction of the Privy Council would be ousted would be a question difficult to resolve. (at p91)
9. However, in my view the principles of res judicata require that the judgment of this Court and the Order in Council made upon a report by the Judicial Committee in appeals between the same parties against the same judgment be consistent. Whichever Court first decides the appeal pending before it, its order is final and conclusive of the respective rights and obligations of the parties to that appeal. The other court is bound so to regard it. It is immaterial that the two courts are not in the same appellate hierarchy: cf. Farquharson v. Seton (1828) 5 Russ 45(38 ER 944); Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC 853, at pp 917, 926, 937, 948, 966. Whether this Court or the Privy Council first determines the appeal, the order then made is a final determination of the rights and obligations of the parties to an appeal arising out of the judgment appealed from, and neither court is at liberty to regard the final order of the other as leaving those rights and obligations of the parties to the appeal as open to variation by an inconsistent order. (This Court could hardly regard an Order in Council as lacking the authority which Dixon J. attributed to the unreversed judgment of the Court of Quarter Sessions in Wishart v. Fraser (1941) 64 CLR 470; nor could the Privy Council so regard an appellate judgment of this Court.) To say that each court is bound to acknowledge the final and conclusive authority of the other's order in disposing of a concurrent appeal does not deny the existence of the jurisdiction of either court. The proposition applies the principle which governs the exercise of that jurisdiction in the exceptional case where the rights and obligations of parties have been finally and conclusively determined by a court in another hierarchy. (at p92)
10. I am therefore of the opinion that inconsistency between the orders disposing of concurrent appeals is impossible. I perceive no reason for holding that the jurisdiction of the Privy Council is ousted by the institution of a concurrent appeal to this Court. However, that opinion gives rise to a further question: which court is to proceed first to determine an appeal from a particular judgment of the Supreme Court of a State and which court should stay the concurrent appeal pending before it? The comity which has marked the long and close relationship between the two courts may be relied upon to devise a common answer to this question in particular cases, if any further cases should occur. In answering the question, much will depend upon the course of the litigation and the identity of the parties, but three factors of importance will usually indicate that this Court should first proceed to dispose of the appeal on its merits. Those factors are the convenience of the parties, the desirability of deciding Australian cases in Australia, and the desirability of this Court defining the law to be applied in Australia. The convenience of the parties, including the difference in the costs involved in prosecuting the respective appeals, is a factor of varying weight, but the other two factors are constant. If the events or transactions that give rise to the litigation occur wholly or substantially in Australia, prima facie the case should be finally disposed of in this country: the administration of justice is an important aspect of social organization the strength of which is affected by removing the seat of judgment to distant shores, especially if the case has aroused public interest. And where the case is likely to give rise to a precedent of any importance, it is desirable that this Court should fashion it for application in Australia. It would be wrong for this Court, whose function it is to declare the law binding upon the Supreme Courts of the States and the other courts of this nation (see Australian Consolidated Press Ltd. v. Uren (1969) 1 AC 590, at pp 641, 644; Viro v. The Queen [1978] HCA 9; (1978) 141 CLR 88 to abstain from listing and deciding an appeal which raises a question of law of any importance. Their Lordships' judgments, though accorded great respect by the courts of Australia, now lack the authority which they had before 1975, and it is undesirable to divide the function of defining and developing the law to be applied in Australia. In the present case, for example, it would be undesirable to leave to their Lordships the function of deciding a question of some importance for Australian law, namely, the question whether exemplary damages can be awarded for trespass. Though these considerations need not be weighed in these proceedings, it is as well to mention them for the guidance of the parties when the order, proposed by the majority of my brothers, is made. I do not suggest that these factors have any part to play in the granting of conditional leave to appeal. (at p93)
11. I too would remit the application to the Court of Appeal. (at p93)
DEANE J. X.L. Petroleum (N.S.W.) Pty. Ltd. ("X.L.") sued Caltex Oil (Australia) Pty. Ltd. ("Caltex") and two other defendants as joint tortfeasors in the Supreme Court of New South Wales for damages for trespass to land. The case was heard by a judge and jury. X.L. succeeded against all three defendants. The judgment against Caltex's two co-defendants was limited to $7,739.06 which represented the jury's finding as to the damages actually sustained ($5,527.90) together with interest ($2,211.16) thereon. The judgment against Caltex was in the amount of $407,739.06 which included both that amount of $7,739.06 and $400,000 as exemplary damages. (at p93)
2. Caltex appealed to the New South Wales Court of Appeal against so much of the judgment against it as represented exemplary damages, claiming that exemplary damages could not properly be awarded against it alone in a joint judgment against it and its two joint tortfeasors and that, in any event, the amount so awarded was excessive. By majority (Hutley and Glass JJ.A., Mahoney J.A. dissenting), the Court of Appeal held that exemplary damages could properly be awarded against Caltex alone. The majority of the Court of Appeal went on to hold, however, that the amount awarded by way of exemplary damages could not be sustained and should be reduced to $150,000. In the result, the Court of Appeal reduced the damages awarded against Caltex to $157,739.06. The judgment of the Court of Appeal was given on 8 December 1982. (at p94)
3. On 14 December 1982, Caltex filed a notice of motion in the Court of Appeal seeking conditional leave to appeal to Her Majesty in Council from the Court of Appeal's judgment against it. The affidavit in support of the motion states that, in the proposed appeal to the Privy Council, Caltex "disputes its liability to pay exemplary damages, and contends that judgment should be given against it" in the amount corresponding to the judgment entered against its joint tortfeasors. On 15 December 1982, X.L. filed in this Court a notice of appeal seeking reinstatement of judgment against Caltex in the amount awarded at first instance. The notice of appeal was accompanied by an affidavit establishing that an appeal lay as of right to this Court. On 24 December 19828 Caltex filed, in the proceedings instituted in this Court by X.L.'s notice of appeal, a notice of cross-appeal limited to the ground that the majority of the Court of Appeal "erred in assessing exemplary damages at $150,000.00 in that the amount so assessed was excessive having regard to the facts found or treated as having been found . . .". (at p94)
4. On 15 April 1983, upon application made by counsel on behalf of the Attorney-General of the Commonwealth, an order was made by this Court pursuant to s. 40 of the Judiciary Act 1903 that "the cause pending in the Supreme Court of New South Wales Court of Appeal", namely, the application for conditional leave to appeal to Her Majesty in Council, be removed into this Court. Upon that application coming on for hearing in this Court, the Commonwealth and the State of New South Wales have, through their respective Solicitor-Generals, intervened to support the argument of X.L. that, in the circumstances of the present matter, the provisions of the Constitution, and in particular s. 73 thereof, preclude the making of an order granting conditional leave to appeal to the Privy Council. (at p94)
5. Prior to Federation, each of the Australian colonies had its own separate judicial system. In each, the Privy Council, acting through its Judicial Committee, constituted the ultimate appellate court. In some cases, alternative avenues of appeal lay open from the one judgment. Thus an appeal was commonly available from a judgment of the Supreme Court of New South Wales in its equitable jurisdiction to either the Full Court of the Supreme Court or the Judicial Committee. The availability of appeal to the Privy Council from the colonial Supreme Courts was supported by the legislative confirmation and extension of jurisdiction which was contained in the Imperial Acts of 1828, 1833 and 1844: see, generally, Nadan v. The King (1926) AC 482, at pp 491-492; Ibralebbe v. The Queen (1964) AC 900, at p 921; Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; (1979) 145 CLR 246, at pp 254-256. Those three Acts and the Orders in Council made pursuant to them provide a statutory basis for the relevant jurisdiction of the Privy Council. That statutory basis is a stronger foundation than the royal prerogative which persists but may, for present purposes, be ignored: if the jurisdiction based on Imperial statute is displaced by implication of a subsequent Imperial statute, it will not be saved by reference to the royal prerogative. It has long been recognized that, notwithstanding its formal structure and procedures, the Judicial Committee is properly to be regarded as a court: see Iralebbe (1964) AC, at pp 918-921. (at p95)
6. On Federation, this Court was created as the principal repository of the judicial power of the new Commonwealth. Section 73 of the Constitution conferred upon it jurisdiction, subject only to such exceptions and regulations as the Parliament might prescribe, to hear and determine appeals from all judgments, decrees, orders and sentences of, inter alia, the Supreme Court of any State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council. The established right of appeal direct to the Privy Council from the Supreme Courts of the former colonies remained available and, subject to leave, an appeal lay from this Court to the Privy Council in all matters other than those specified in s. 74 of the Constitution as requiring the certification of this Court. Under the Constitution, it became, for the first time, plausible to speak of one Australian judicial system. The Privy Council and this Court were part of the appellant structure within that system. That appellate structure allowed, at some levels, alternative avenues of appeal. It was, however, a unified structure in that, subject to questions of certification under s. 74 of the Constitution or of leave, all avenues of appeal led ultimately to the Privy Council which constituted its apex. (at p95)
7. The availability of concurrent appeals to two, and in some case three, different appellate courts could and did, if different parties elected to appeal to different courts from the one judgment, lead to difficulty and inconvenience. In relation to matters other than those specified in s. 74, the ultimate control of the Judicial Committee through the prerogative to grant leave to appeal from both this Court and the Supreme Courts and the pre-eminence of its decisions precluded such inconvenience and difficulty from constituting a manifestation of underlying inconsistency between the respective statutory foundations of appeals to the Privy Council and appeals to this Court. That is not to say that the possibility of conflict in the exercise of the respective judicial powers of the Privy Council and of this Court did not exist. It is simply to recognize that, while there remained but one appellate structure, potential conflict in the exercise of judicial powers would fall to be resolved by reference to the pre-eminence of the Judicial Committee in that appellate structure. The seeds of possible future inconsistency between the statutory foundations of the respective jurisdictions of the Privy Council and of this Court existed however in the provision contained in s. 74 of the Constitution that the Parliament might make laws limiting the matters in which leave to appeal to the Privy Court might be asked. (at p96)
8. The Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals from this Court to the Privy Council subject only to the theoretical exception of an appeal pursuant to a certificate of this Court in a matter involving an inter se question. This represented no mere sea-change. It effected a bifurcation of the previous unified appellate structure into distinct structures: one, in which this Court ordinarily has no role to play, leading to the Privy Council; the other, in which the Privy Council has no role to play, leading to this Court. In the appellate structure leading to the Privy Council, from which all matters involving the exercise of federal jurisdiction are now excluded (Judiciary Act s. 39(2)(a)), the Judicial Committee remains the final appellate court. It is there alone that the Judicial Committee remains of pre-eminent authority in so far as Australia is concerned. In all other areas, this Court is the ultimate appellate tribunal for Australia. As between the Judicial Committee and this Court, there no longer exists the control of conflict in the exercise of judicial powers by different courts which is inherent in the hierarchy of tribunals in a single appellate structure. Nor can the judicial powers of this Court be read back to avoid conflict with the judicial powers of the Privy Council in a manner which may have been appropriate when this Court was part of an appellate structure in which the Privy Council was pre-eminent. If inconsistency exists or arises between the respective judicial powers of the Privy Council and of this Court, it manifests, pro tanto, inconsistency between the statutory foundations of the respective jursdictions and must be resolved in accordance with ordinary legal principles. (at p967)
9. In the Southern Centre of Theosophy Inc. Case [1979] HCA 59; (1979) 145 CLR 246, it was held by this Court that an appeal to the Privy Council lay from a decision of the Supreme Court of South Australia in a case in which the provisions of the applicable Order in Council (1909 No. 22) were satisfied and in which no exercise of federal jurisdiction was involved. That decision should be accepted as establishing that the bifurcation of the Australian judicial system, which resulted from the abolition of appeals from this Court to the Judicial Committee, did not result in any general inconsistency between the statutory foundations of the respective appellate jurisdictions of the Privy Council and of this Court: the mere existence of the competing appellate structures does not involve general inconsistency of a type which would remove the statutory foundation of one or other of them. That does not however mean that such underlying inconsistency between statutory provisions might not be manifested by the concurrent assertion or purported exercise of jurisdiction in a particular case. The Southern Centre of Theosophy Inc. Case, in which no appeal to this Court had been instituted, should not be seen as decisive of the question which lies at the forefront of the present application. That question is whether the assertion or exercise by the Privy Council of its jurisdiction to hear and dispose of Caltex's proposed appeal from the judgment of the Court of Appeal would be inconsistent with the assertion and exercise by this Court of its jurisdiction to hear and determine the pending appeal and cross-appeal from the same judgment. (at p97)
10. The orders sought on the appeal and cross-appeal to this Court are that the amount of the judgment against Caltex be increased (X.L.'s appeal) or reduced (Caltex's appeal) by either increasing or decreasing the amount included as exemplary damages. Senior counsel for Caltex was at pains to stress, on the hearing of the present application, that Caltex does not contend in its cross-appeal to this Court that no exemplary damages at all should have been awarded against it. It intends to advance that contention on the proposed appeal to the Judicial Committee where it will seek an order that the amount of the damages be reduced by disallowing altogether any exemplary damages. In these circumstances, it is apparent that the order which is sought in the proposed appeal to the Privy Council is inconsistent with any order which is sought by either party in the appeal and cross-appeal to this Court. In fact, of course, the inherent conflict between the competing appeals would be likely to result in one or other of them being rendered futile before the stage of making orders was reached. If, for example, the appeal to this Court were to be heard before the appeal to the Judicial Committee and this Court were to be persuaded that the exemplary damages should be either increased or decreased, the Privy Council would have no jurisdiction to interfere with the judgment of this Court in that regard or to interfere with the judgment in the varied amount which would have replaced the judgment of the Court of Appeal notwithstanding that their Lordships were persuaded that no exemplary damages at all could properly be awarded. Upon analysis however, the inconsistency between the orders sought in the different proceedings and the various ways in which the utility of one appeal could be destroyed by what happened in the other are but peripheral to the real problem involved in the concurrent pursuit of the appeal and cross-appeal to this Court and of the proposed appeal to the Privy Council. The real problem arises from the nature of the appeals. (at p98)
11. The appeal and cross-appeal to this Court and the proposed appeal to the Privy Council are all full appeals notwithstanding the limited grounds of appeal which the parties may propound in the notices of appeal and cross-appeal or in support of the application for conditional leave. In each, to quote the words of Sir George Farwell (speaking for the Judicial Committee) in Bombay Cotton Manufacturing Co. Ltd. v. Motilal Shivlal (1915) LR 42 Ind App 110, at p 113, "the whole case, including the facts, are (sic) within the jurisdiction of the Appeal Court": see, also, per Isaacs A.C.J. in Federal Commissioner of Taxation v. Clarke [1927] HCA 49; (1927) 40 CLR 246, at p 264. Thus, both the Judicial Committee and this Court possess jurisdiction to uphold or dismiss an appeal on a point not raised in the appeal papers and to make orders on the hearing of the appeals different from the orders sought by any of the parties: see Attorney-General v. Simpson (1901) 2 Ch 671, at p 720 and, as regards this Court, Judiciary Act, s. 37. The determination of such an appeal by a court of final appeal is not merely the final determination between the parties of the particular issues of fact or law which the parties may have seen fit to argue on the appeal. It is the ultimate and conclusive determination of the whole case. The whole dispute becomes res judicata. (at p98)
12. When full appeals are available to different final courts of appeal, each in a different appellate structure but in the one judicial system, the doctrine of res judicata would ordinarily preclude the ultimate absurdity of inconsistent orders in the one case. If it did not, there would plainly be inconsistency between statutory provisions which authorized the actual making of such inconsistent orders. Inconsistency can however exist between concurrent assertions and exercises of jurisdiction in judicial proceedings long before the stage of final order. The entertaining of a full appeal on the merits involves the assertion of full jurisdiction over the case including jurisdiction to determine it according to the merits of the appeal. It may involve interference with the rights of the parties by subjecting them to burdensome provisions of Orders in Council or Rules of Court and to interlocutory orders and stays. It will ordinarily involve a party in expenditure on account of his own legal costs and render him liable to be ordered to pay the legal costs incurred by another party. There is a fundamental inconsistency between concurrent claims by different final courts of appeal to have taken the complete control of the one case by entertaining a full appeal from the judgment of an inferior court. As Fletcher Moulton L.J. observed in Doleman & Sons v. Ossett Corporation (1912) 3 KB 257, at p 269, "(t)here cannot be two tribunals each with the jurisdiction to insist on deciding the rights of the parties and to compel them to accept its decision": see, also, per Latham C.J., Rich, Dixon and McTiernan JJ. in R. v. Poole; Ex parte Henry [1938] HCA 63; (1938) 61 CLR 1, at p 7. That fundamental inconsistency arises as soon as two final courts of appeal concurrently entertain - with all that that involves - full appeals from a single judgment of an inferior court. It cannot be resolved by treating the unseemly spectacle of two final courts of appeal concurrently entertaining full appeals from the one judgment as some sort of sporting race to judgment with the swifter court awarding the spoils of victory to the successful party on the argument before it and the slower court being left with no real function other than the distribution of the burden of costs. Nor can it be resolved by reliance upon judicial comity between courts in different appellate structures. Comity between courts may help to minimize the inconvenience and injustice that could result from the concurrent entertaining by two different final courts of appeal of full appeals from the one judgment. It cannot, however, remove the inconsistency between two sets of statutory provisions which would, according to their terms, authorize different final courts of appeal in separate appellate structures to entertain full appeals from the one judgment at the same time. (at p99)
13. It follows from the foregoing that I consider that the assertion or
exercise by the Judicial Committee of its jurisdiction to
hear and dispose of
an appeal from the judgment of the Court of Appeal in the present case would
be inconsistent with the assertion
and exercise by this Court of its
jurisdiction to hear and determine the pending appeal and cross-appeal from
the same judgment.
That inconsistency is a manifestation of inconsistency
between the underlying statutory provisions in their application to the
circumstances
which have arisen: between, on the one hand, s. 73 of the
Constitution which provides that this Court has jurisdiction to hear and
determine the appeal and cross-appeal to it and that the judgment of
this
Court shall be final and conclusive and, on the other hand, the provisions of
the various nineteenth century Imperial Acts and
the Orders in Council made
under them which confirm and regulate the jurisdiction of the Privy Council to
hear and determine the
proposed appeal to it. It is to be resolved conformably
with the "branch" of a more general "proposition" to which Griffith C.J.
referred in the well-known passage in his judgment in Goodwin v. Phillips
[1908] HCA 55; (1908) 7 CLR 1, at p 7:
". . . where the provisions of a particular Act of Parliament(See, e.g., In re Williams (1887) 36 ChD 573, at p 578; Mirfin v. Attwood (1869) LR 4 QB 333, at p 337; Heston and Isleworth Urban Council v. Grout (1897) 2 Ch 306, at p 313.) (at p100)
dealing with a particular subject matter are wholly inconsistent
with the provisions of an earlier Act dealing with the same
subject matter, then the earlier Act is repealed by implication.
It is immaterial whether both Acts are penal Acts or both refer
to civil rights. The former must be taken to be repealed by
implication. Another branch of the same proposition is this,
that if the provisions are not wholly inconsistent, but may
become inconsistent in their application to particular cases,
then to that extent the provisions of the former Act are
excepted or their operation is excluded with respect to cases
falling within the provisions of the later Act."
14. It was, as I followed the argument, common ground that, in the event of
any inconsistency between the provisions of the Imperial
Acts (and Orders in
Council made under them) determining and regulation the jurisdiction of the
Privy Council and the provisions
of the Constitution (and legislation enacted
under it) establishing and conferring jurisdiction on this Court, the
Constitution (and legislation enacted in pursuance of it) must prevail by
reason of the fact that the Constitution enjoys the authority of the later
enactment of the Imperial Parliament: see The Commonwealth v. Limerick
Steamship Co. Ltd. and Kidman
[1924] HCA 50; (1924) 35 CLR 69, at pp 95-96, 115-116: The
Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley [1926] HCA
8; (1926) 37 CLR 393, at pp
414-415,
430, 431. That being so, the operation of the provisions of the
nineteenth century Imperial
Acts and Orders in Council
must be regarded
as
having been excluded to the extent to which they would authorize the Privy
Council
to hear or determine an appeal
to it from a
judgment of the Court of
Appeal from which a competent appeal awaits hearing in this
Court. To put the
matter more specifically
in
relation to the present case, the Commonwealth of
Australia Constitution Act (Imp.) which provides the foundation of the
jurisdiction of this Court to hear and determine a full appeal from the
Supreme Court
of New South Wales and expressly provides that the judgment of
this Court on such an appeal "shall be final and conclusive", impliedly
excludes the jurisdiction of the Privy Council, founded on prior Imperial Acts
(particularly The Australian Courts Act 1828 (Imp.)),
to hear and determine an
appeal to it from the judgment of the Court of Appeal from which an appeal
awaits hearing in this Court.
It is unnecessary to consider whether, if the
conclusion to which I have come had been reached by a majority of the Court,
the appropriate
course would be to refuse the application for conditional
leave or to adjourn it in case the appeal to this Court should be discontinued
or dismissed for want of prosecution. (at p101)
ORDER
Application for conditional leave to appal to Her Majesty in Council remitted to Court of Appeal of the Supreme Court of New South Wales.The Attorney-General of the Commonwealth of Australia to pay the appellant's and respondent's taxed costs of and incidental to the removal of the application into this Court and the hearing in this Court.
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