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Thursday, 19 July 1906


Mr CONROY (Werriwa) . - I certain lv feel very considerable difficulty in dealing with this measure, because, in the first place, I am very anxious to avoid unnecessary expense. I am one of those who are aware that there is no expenditure which serves a better cause than does the provision of additional Justices when they are really required. If there are not sufficient Justices to carry on the work of a Court, then, no matter what our objection on the score of expenditure may be, additional Justices should certainly be appointed. If that is not done the delays of the law, always in themselves vexatious enough, and also the costs of any cause are largely increased. When litigants are delayed it means that enormous expense is involved, because of the number of witnesses who have to be kept waiting until the cause is tried. ' For instance, in Sydney last month the Justice appointed a day upon which to determine a country cause. Forty-two witnesses had started to come down to the Court, when they were informed that, owing to the pressure of business, His Honour would be unable to attend, and the cause had to be delaved for a week longer. As a consequence, the expense of forty-two witnesses was entailed for one week! longer thar otherwise would have 'been the case. I can also cite a case with which I had some connexion a few years ago. Owing to the Equity Judge being unable, to hear and determine the cause on the day appointed, because of the pressure of other causes upon him, the expenses were increased bv the sum of no less than ^1,200.


Mr Webster - That was owing to mismanagement.


Mr CONROY - A very large part of that expenditure was incurred for witnesses' expenses' alone. One or two witnesses had to be brought from New Zealand, and a very heavy expenditure was involved in keeping them in New South Wales. If we take it upon ourselves to refuse to appoint more Judges, when a case seems to have been made out for an addition to the Bench, we must act under a full sense of the heavy responsibility thrust upon us, because, whatever regard we may have for economy in administration, it behoves us to see that there are not too few Justices for the hearing of appeals. Consequently, when the proposal to add to the High Court Bench was first mooted, I felt that I should have great difficulty in dealing with it.' In my opinion, it would be preferable that Justices should want cases than that suitors should want justice, and,rather than bring about the denial of that justice which it should be our primary aim to secure, we should provide more than enough Justices. But, after carefully considering the whole matter, I feel unable to agree to the appointment of more Justices.


Mr Webster - Will not the honorable and learned member agree to any fresh appointments ?


Mr CONROY - Not at the present time. No doubt, under the Judiciary Act as it stands, the Justices have too much to do, and, if the Act is not amended in certain particulars, it will be necessary to increase the Bench, not by two only, but by at least four. The honorable and learned member' for Indi will agree with me that the appointment of two more Justices will not provide for the constitution of another Full Court, and that the appointment of at least three would be necessary for that purpose. In addition, there is the work of the Arbitration Court, so that four., and not two, new appointments will be needed if the Act is not amended. What is necessary is to reduce the number of appeals. We should not permit appeals to the High Court from a single Judge. Of course, two Justices could constitute an Appeal Court; but it would create great dissatisfaction in. the mind of a litigant if a decision were given against him because the senior Justice happened to hold one opinion and the junior Justice another. Therefore, it will be unwise to have an Appeal Court of less than three Justices, and it is not proposed to constitute a second Appeal Court. But the facts put before us show that, if the Judiciary Act remains unamended, there will be work, not for two only, but for four more Justices, white an amendment of the Act will make any new appointment unnecessary, unless, of course, it is thought wise to have an Appeal Court of five instead of three. When the first Judiciary Bill was before us. some four years ago, I, with the honorable and learned member for Angas, pointed out that, if the original jurisdiction provided for were given to the High Court, and appeals were allowed from a single Judge, we should, within two or three years, require, not only five Justices, which was the number fixed by the original Bill, but at least seven; and I ventured to prophesy that, if we allowed the measure to be u construed as it could and would be construed, seven Judges would, within ten years, be too few, and High Court Benches of three Justices each would be required for each State.


Mr Frazer - Does the honorable and "learned member desire that all litigants shall have to go through the Full Courts of the States to get to the High Court?


Mr CONROY - Litigants wishing to appeal to the High Court should go through the Supreme Courts, and, unless the matter was very important, an appeal should not be allowed from the Supreme Courts. The High Court should sit only as an Appellate Court. If appeals are multiplied too much, it increases, instead of diminishes, law expenses. Prior to the establishment of the High Court, the appeals from Australia to the Privy Council did not average more than twelve a year, and there is not much difference between the expense of an appeal to the Privy Council and the expense of an appeal to the High Court.


Mr Isaacs - Nonsense.


Mr CONROY - The average expense of the 223 appeals to the Privy Council has been £210 each, and I know of appeals to the High Court which have cost over £1.000 each.


Mr Frazer - Such cases would have cost £10,000 each if the appeal had been to the Privy Council.


Mr Isaacs - To what cases does the honorable and learned member refer?


Mr CONROY - I can give the names to the Attorney-General in private. When' half-a-dozen parties are represented by counsel, expenses soon mount up. I know of a case in which the brief .of the learned counsel was marked with a fee exceeding one hundred guineas, to which, of course, had to be added refreshers. Parties before the High Court are always represented by counsel, but, in scores of cases, poor litigants need not be 'represented by counsel before the Privy Council, and have to incur no further expense than that of printing documents, such, as have to be printed for an appeal to the High Court. By endeavouring to cheapen law, we have enormously increased its expense to many litigants. At the last sitting of the High Court in Melbourne, there were twelve appeals to 'it ; but if the Judiciary Act had been properly framed, nine of those appeals would not have been heard. What we should do is to amend the Judiciary Act so as to bring the work of the Court within reasonable limits. I admit that there is something to be said for strengthening the Bench so as to have an Appeal Court of five instead of three. To honorable members who take that view I have nothing further to urge. But that is not the ground on which we are asked to consent to the appointment of two extra Justices. If it had been contended that at the time that we passed the original Act excitement ran high, and that there was a grave doubt as to the work the Court would be called upon to do, or as to the appeals which would! be made, we might have been asked to reconsider the position, and to increase the number of Justices. With those who take the view that five Judges- on the Bench would probably ad'd to the weight of the Court my objection will go for nothing, but 1 wish to particularly point out our failure to recognise the fact that our own legislation has enormously increased the number of cases that have come before the High Court. I do not altogether like to say, " I told you so," but upon looking up the debates I find that I was one of those who pointed out what would result from the passing of the Act in its present form. 1 pointed out that if we gave to the Court- the original jurisdiction contemplated - there was no necessity for it, because we had1 all the necessary machinery in full operation - we should enormously increase the work of the Justices. I urged that instead of having one Full Court, we should, within two or three years, require at least two Courts, and that, if cases were to be speedily disposed of, we should within ten years be called upon to appoint 17 or 18 Judges. So far my prediction has been fulfilled. I need only refer to the speech of the Attorney Genera! for proof of this. He referred to the work that had been done by the Justices, and showed that my forecast was a perfectly correct one. The honorable and learned member for Angas also delivereda very able speech upon the same point. Any one reading that speech to-day cannot fail to be struck by the foresight displayed by the honorable and learned member, and we must be thankful that we have amongst us some men who would grace any debating assembly in the world. I particularly refer to the honorable and learned member, because he was one of those who pointed cut that we were exceeding our powers in taking away the right of appeal from the Supreme Courts of the States to the Privy Council, and that we were wrong in deciding that the High Court alone should hear such appeals. The judgment which has since been given by the Privy Council in ' the Outtrim case fully bears out what was said on that occasion. We took il' upon ourselves to give extended powers to the High Court, and I venture to say that within the next two or three years we shall find it necessary to appoint another five Justices in addition to those whose elevation to the Bench is now contemplated. Our Judiciary Acts invests the Justices with so much power that it is only because they have refused to exercise their original jurisdiction, that they have been able to cope with the work. By making litigants go to the High Court straight away we do not diminish the expense to them, but rather increase it. The Justices of the High Court occupy an almost unique position - I am employing the exact words of the Attorney-General - and we ought not to add to their number if we can avoid it, especially in a moribund Parliament. If, by making the Court, as was first intended, a strictly appellate tribunal, we can get along with the. present number of Judges, we ought to do so. I was one of those who stated that we ought to limit the powers of th-b Court, because I foresaw that before long we should be called upon to strengthen the Bench. If we allow the Act to stand as at present, we shall only play with the question by appointing two extra Justices. If the report presented by their Honours goes for anything, we should appoint at least four more Justices. Already there are some remanets in at least two of the States, and, therefore, some litigants will be prevented from obtaining an early decision of their causes, and will be involved in extra expense. We should constitute two Full Courts, so that sittings might be held simultaneously in different States for the hearing of appeals. The alternative is to amend the Judiciary Act in the direction of taking away some of the rights of appeal that are now given. If we had made such an amendment before this, nine of the twelve cases which were recently dealt with in Victoria would have absolutely disappeared.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - What were they?


Mr CONROY - Appeals from the decision of a single Judge.


Mr Isaacs - If the right to appeal from the decision of a single State Judge were done away with, litigants would have to pass through two Courts instead of one, in order to reach the final appellate tribunal.


Mr CONROY - The Attorney-General knows very well that that is not correct. Does he think that litigants ought to have the right to appeal from Court after Court ? He knows very well that in the great majority of cases litigants are satisfied with the first decisions that are given. Before the High Court was established, the decisions of the States Supreme Courts - irrespective of whether they were right or wrong; - stood. There was a certain amount of finality about them.


Mr Frazer - In the majority of cases, according to the judgments given by the High Court upon appeal, they were absolutely wrong.


Mr CONROY - The mere fact that we have constituted the High Court does not of itself argue that the Justices composing it are endowed with such an infinitely better knowledge of jurisprudence that we are entitled to say their decisions are always right, and those of the Supreme Court Judges are always wrong.


Mr Frazer - I do not say that they are infallible, but I would much prefer to accept the decisions of the High Court than those of any Full Court of a State.


Mr CONROY - The two Justices of the High Court who for a time filled the position of acting Judges in New South Wales, were regarded during their tenure of office as very sound and sensible men, but no greater weight was attached to their judgments than was attached to those of their brother Judges, whose opinions they are now so easily able to supersede.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The most puzzling thing to me is the marvellous way in which our High Court Justices always agree.


Mr CONROY - There is no doubt that in the Chief Justice of the High Court, the Commonwealth possesses a jurist of very high powers indeed


Mr Glynn - The Court itself is one of which the Commonwealth has reason to be proud.


Mr CONROY - I think that the Court is one to which nobody in Australia need be ashamed to point, because it possesses men of very great abilities indeed. But it is not too much to say that a great many of us do not regard that Court as infallible, and we are just as likely to disagree with its judgments as we are with the judgments of three or four of the Judges of the States Supreme Courts.


Mr Glynn - I think that the Appeal Court at Home upsets about 50 per cent, of the decisions of the Divisional Courts.


Mr CONROY - Some honorable members appear to think - and the AttorneyGeneral encourages the belief - that by affording litigants an opportunity to appeal direct to the High Court, we enable them to effect a saving. To the majority, I venture to say that that process involves an additional expenditure.


Mr Isaacs - I entirely disagree with the honorable and Learned member. In addition. I think that he ought to consider whether we have the power under the Constitution to do what he suggest


Mr CONROY - Then we ought so to frame our laws that the number of appeals to the High Court will be .limited in the same way as are the appeals to the Privy Council. We cannot constitute two Courts of Appeal, and if the records to which reference has been ma'de show anything, it is that at least two Courts of Appeal are wanted. I say that two Courts of Appeal are not necessary. How can we constitute two Courts? Every one of the cases which have been quoted would require to have been heard by three Justices. Either we are going too far, or we are not going far enough. The appeals which are now being made to the High Court are so numerous that the position is becoming a very serious one. Before that tribunal began to upset the decisions of the States Supreme Courts, litigants were satisfied, That is not the case to-day. I will guarantee that the expense incurred in appealing to the High Court has considerably increased the cost of litigation. Before the establishment of that tribunal, there were about twelve appeals annually from the decisions of the States Supreme Courts. These appeals cost, upon an average, about £210, or ;£2:5°° a- year. I will undertake to say that no party can appear before the High Court without incurring an expenditure of from /"30 to £40 on either side. If we assess a great many of the smaller appeals at from £80 to £100, what a large sum they represent. In view of the multiplicity of these cases, I hold that we are considerably increasing the cost of litigation. Honorable members themselves are conscious of that. What did the Attorney-General do when the Australian Industries Preser vation Bill was under consideration the other day ? He limited the power of appeal from the decision of a single Judge. In fact, he provided that there should be no appeal from his decision. In scores of instances that is what obtains to-day. In this connexion I particularly refer to the various Courts of Petty Sessions throughout the States. In numbers of cases their decision is practically final. It surely will not be said that we are diminishing the cost of 'law when we now find that in all these cases an appeal would lie to the High Court. As I say, we have enormously increased the amount of litigation which can !be proceeded with, and that is not to the benefit of the people of Australia.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I understand that litigants have an option, and can go either to the High Court, or to the Full Court of the Supreme Court of a State.


Mr CONROY - They can, in some cases. Mr. Joseph Cook. - Then in case there is a congestion of original business that should not lead to a denial of justice, since litigants have that option.


Mr CONROY - There would not be a denial of justice where they have that option, nor would there be a denial of justice, even if we did not appoint fresh Justices of the High Court. But the High Court should! so frame its rules and regulations as r.ot to allow appeals to be made direct to it.


Mr Isaacs - The High Court could not* do any such thing.


Mr CONROY - If we were to amend our Judiciary Act, and permit appeals only under certain conditions, it could. At the present time a lot of this work is forced upon the High Court as the result of our legislation. This was clearly foreseen when we were passing that legislation, and at the time I pointed out what the result would be. I said that in two years' time the appointment of additional Justices of the High Court would be asked for, and it is manifest, if the figures which have been quoted are correct, that two Courts should have been asked for before, if some power such as I suggest is not to lie exercised.


Mr Frazer - Would the honorable and learned member force litigants to go to the State Full Court before they can ge" to the High Court?


Mr CONROY - Most unquestionably. I would not allow an appeal to the High

Court from the Supreme Court of a State, except in a matter in which an appeal would lie to the Privy Council. Such a matter should be allowed to go to the High Court. I thought that when we were establishing this Appellate Court we proposed to do so practically in lieu of the Privy Council, and that consequently there would be no more appeals to the High Court than there had been to the Privy Council ; nor would there have been if we had framed our legislation properly. I pointed out at the time that if we framed our law as proposed, the number of our appeals would be enormously increased. I have been justified by the event. In the Outtrim case the other day the Privy Council decided that section 39 of our Judiciary Act is absolutely ultra vires.


Mr Isaacs - No; they have given no decision on the subject yet.


Mr CONROY - I assure the honorable and learned gentleman that they have decided that, and have also decided to hear the appeal.


Mr Isaacs - They may so decide, but they have not done so vet.


Mr CONROY - The honorable and learned member for Northern Melbourne, who is one of those who took the same stand as I did in this matter, assures me that what I state is a fact. The honorable and learned gentleman congratulated me on being one of those who, with himself, had taken the view that section 39 of the Judiciary Act was ultra vires, and he told me that the Privy Council had held that that was the case.


Mr Isaacs - They have given no judgment yet.


Mr CONROY - I certainly understood that from the newspaper reports of the case. The reports telegraphed out to the newspapers showed that -the Privy Council entirely set aside the argument used that they were prevented from hearing the appeal , and decided that the section to which I have referred is ultra vires. I wish to see the High Court made an Appellate Court pure and simple.


Mr Isaacs - What original jurisdiction would the honorable and learned member take away ?


Mr CONROY - The whole of the original jurisdiction under section 30 and following sections of the Judiciary Act. Section 30 provides that, in addition to the original jurisdiction conferred by the Constitution, the High Court shall have original jurisdiction in all matters arising under the Constitution or involving its interpretation.


Mr Isaacs - Surely the honorable and learned member would not ta[ke the interpretation of the Constitution from the High Court ?


Mr CONROY - Surely the AttorneyGeneral is not going to put that limited meaning upon the words quoted, considering that that means that it has original jurisdiction in regard to every matter arising under section 51 - not section 73.


Mr Isaacs - No, no.


Mr CONROY - I am one of those who give a different reading to the section.


Mr Isaacs - Will the honorable and learned member look at: the next subsection, No. II. ? It is not given as arising under any laws made by the Parliament.


Mr CONROY - What is more, in all our legislation we are proceeding to invest the High Court with original jurisdiction.


Mr Isaacs - That is quite a different question.


Mr CONROY - I am pointing out that this is being done. It is done under the Patents Act, Trade Marks Act, Copyright Act, and Arbitration Act, and it is proposed in the Australian Industries Preservation Bill. In all these measures1 we have conferred, or propose to confer, original jurisdiction on the High Court.


Mr Isaacs - Would the honorable and learned member repeal all those measures?


Mr CONROY - I do not desire to repeal them, but I say that we should put the High Court in the position of an Appellate Court, pure and simple. If we do not, the expense will be enormous, and it will not be merely a matter "of the appointment of two more Justices. If the appointment of only two more Justices were involved, the matter would not be worth arguing about.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It seems to me that the more we increase the status of this Court, the more it is bound to attract business from other Courts.


Mr CONROY - We are framing our laws in such a way that the whole of the business must go to the High Court, and I remind honorable members that later on we shall not be in a position to take away a great deal of this original jurisdiction. I am not now arguing as to whether five Judges should constitute the High Court. Honorable members may have a perfect right to say that there- should be five Judges; but if we continue on the lines which we have adopted so far, we must have two Courts. We cannot deny justice to the people, and we shall deny it if we do not provide sufficient Justices to hear their cases.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) -i do not quite agree with the honorable and learned member in that, because there is the option.







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