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Thursday, 19 July 1906


Mr CONROY (WERRIWA, NEW SOUTH WALES) - What we should do is to make the High Court an Appellate Court, pure and simple. If we did, three Justices would be able to do the work. I do not say that if that were done there should be only three Justices of the High Court. It might be advisable that there should be five, and I should not be disposed to quarrel with those who would take that view.


Mr Kelly - Has not the High Court original jurisdiction as well as appellate jurisdiction?


Mr CONROY - I am pointingoutthat that is precisely the source of the serious danger confronting us.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Where does the danger arise, since litigants have the option of going to the Full Court of a State, if they feel that they will be crowded in the High Court?


Mr CONROY - Because the High Court, like all other Courts, will try to appropriate all the work for itself. There is not a Court that does not do that. Honorable members will not find in history an instance of any body of lawyers who have not tried to collect all the work into their own Court. The Ecclesiastical, Probate, and Divorce Courts have all tried to do so.


Mr Isaacs - How could they? The High Court cannot collect business.


Mr Deakin - I wish we knewwhat Court could deal with the honorable and learned member.


Mr CONROY - If I were convinced that a Court was competent to deal with me I shouldreadily submit to its jurisdiction. I do not desire to labour the matter, but merely to point out where we are going. If the House decides still to march on in the same direction there is no more to be said. My objection is to the very large expenditure that this Bill would involve. We are taking away from the great bulk of suitors the opportunity to appeal to the readiest and handiest Court ; and if there are not Courts sitting constantly in the cities, we shall have a serious state of affairs in which the appointment of two, or half a dozen, or a dozen Justices wouldnot be sufficient.


Mr Frazer - Surely the litigant is the best judge as to the Court for his case ; if he prefers finality in one Court, would the honorable member prevent him from going to it?


Mr CONROY - The honorable member will see that many cases have to go through several Courts. Let the honorable member multiplythe cases of last year by £100 only, allowing £50 expenses on either side ; and if He can show a litigant who could, at that expense, take through a case that lasts over a day,I should be glad to meet that litigant and his solicitor. So far from diminishing the expenses of appeals, it is proposed to increase them to an enormous extent.


Mr Isaacs - The honorable member would double the expense.


Mr CONROY - The Attorney-General is quite wrong. If the power given to appeal to the High Court were only that given in the case of the Privy Council,we should notgetverymanymore cases than are taken 10 the latter tribunal.


Mr Isaacs - Nearly all the appeals in New South Wales are from the Full Court to the High Court, and that means double appeals.


Mr CONROY - But as soon as people get over the idea that the High Court exists for the purpose of upsetting every decision of the Full Court of a State - as soon as the Supreme Court of NewSouth Wales understands what the decisions of the High Court are - appeals will decrease in number. During the last two years the High Court, by its. decisions, has been making a body of law which will diminish the chance of appeal unless appeal be made on the principle of the toss of a penny, and in view of the many decisions of the Supreme Court that have been upset. It is not good there should be that feeling of antagonism, and I do not desire to see it stranger than it is now. My point is that unless we amend the Judiciary Act we shall have to greatly increase the number of Justices - that is, we shall have to do so unless the High Court is made an appellate Court pure and simple. There is always a prejudiceagainst the appointment of extra Judges; but I take it to be an axiom that Judges should be appointed whenever they are wanted. The Attorney-General has come forward with an argument in favour of the existence of a second Court, but he has not proposed Judges for that Court, and ihe necessity for it would be obviated if tho High Court were made what it was originally intended to be. I do not say that a Court of five Judges is' not better than a Court of three Judges, but it is as well to look the matter straight in the face, and recognise the fact that, unless we amend the Judiciary Act, two Judges will not be nearly enough, but that, on the contrary, we shall have to appoint at least three more, and possibly a fourth. 'At all events, if appeals continue to increase in the same proportion, or in anything like the same proportion as in the past, we shall have to provide next year for at least two more Judges ; and while we are at work we might as well consider whether it would not be well, by an amendment of the Judiciary Act, to render such appointments unnecessary. The one argument that could then be brought forward in favour of extra Judges would be that their appointment would strengthen the Court and give greater weight to its decisions. Sometimes appeals are heard in the Supreme Courts of the States by five or six Judges, and I remember two occasions on which a Full Court of seven Judges sat to determine very important points of law. It would be very unsatisfactory if a decision by seven Judges of a Supreme Court should be upset by an appeal Court consisting of only three Judges. The Attorney-General has never appealed to us on these grounds, but says that the Court is to deal with extraneous matters entirely ; so that the one strong ground I thought he had in defence of the Bill, he has thrown away. Under the circumstances I am unable to give that support to the second reading of the Bill that I might otherwise have been glad to extend.

Debate (on motion by Mr. Joseph Cook) adjourned.







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