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Tuesday, 23 June 1903

Sir JOHN QUICK (Bendigo) - I wish to direct the attention of the AttorneyGeneral to the concluding portion of subclause (1) -

And shall be made as of course upon motion in open court by the Attorney-General of the Commonwealth or on his behalf.

I wish to know whether that means in suits to which the Attorney-General is a party, or whether it is intended that the AttorneyGeneral may interpose in a suit between two private persons, and move that it be removed to the High Court?

Mr Deakin - Yes.

Sir JOHN QUICK - I do not think that is j ustifiable. Why should the AttorneyGeneral interfere between plaintiff A as against defendant B, and say - "I will not allow you to have this case settled in the court of the State ; you must have it removed to the High Court."

Mr Watson - Is it intended to cover constitutional points?

Sir JOHN QUICK - I do not know. It seems to refer to all cases.

Mr DEAKIN - I look upon that matter as one of the questions of substance with which I propose to ask the Committee to deal presently. I propose to make these formal and necessary amendments, and then to submit the clause as a whole. If any difficulty occurs, I shall be prepared to recommit the clause.

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to -

That the words " in the same manner as hereinbefore prescribed in the. case of a removal by a defendant," lines18 to 20, be omitted.

Mr DEAKIN - Honorable members will observe that this clause contains two important proposals. In the first place, the clause as a whole relates to the power of removing cases from the States Courts to the High Court.

Mr Watson - As a matter of appeal.

Mr DEAKIN - Not as a matter of right, but on the application of any party, if sufficient cause be shown.

Mr Watson - After the case has been initiated in a State Court ?

Mr DEAKIN - Yes. The words of the clause as amended are wide. They provide that -

(1)   Any cause or part of a cause involving a matter of Federal jurisdiction which is at any time pending in any Court of a State may at any stage of the proceedings before final judgment be removed into the High Court under an order of the

High Court, which may, upon the application of any party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be madeas of course upon motion in open Court by the Attorney-General of the Commonwealth, or on his behalf.

Let me deal first of all with the power of removal. The honorable and learned memberf or Bendigo in criticising the preceding clause, pointed out that, under words precisely similar to those which wehaveused in our Constitution with reference tojudicial power, it had been held that the power to remove a cause involving matters of Federal jurisdiction was so inherent, that the Constitution of the United States of itself was sufficient to confer that right on the court. Subsequently that right was formally conferred by statute in the United States. The power of removal can be exercised first of all on theapplication of any party.

Mr McCay - Does the AttorneyGeneral say that the United States decision would be applicable to our circumstances ?

Mr DEAKIN - I have mentionedthat, after the judgment in Martinv. Hunter was given, a statute was passed by Congress regulating the method of removal. But Mr. Justice Story, whose decision was quoted by my honorable and learned friend, held that such a power was absolutely inherent in the United States Courts, although in the Constitution, no such power was expressed in any definitewords.

Mr McCay - Does the honorable and learned gentleman think that, in our circumstances, that decision would be followed by the Privy Council?

Mr DEAKIN - That is a very large question; but I thinkthat as the words upon which that decision was based appear in our Constitution, and as it is obviously necessary that matters ofFederal jurisdiction should be dealt with by the High Court, and that there should be power to remove cases from the States Courts in which they arose, a very favorable inclination would be shown towards that reading. Whether such a reading would be established or not I shouldhesitate to say until I had had an opportunityof examining the question much more closely than Ihave yet had occasion to do. But quite apart from that matter, which is merely a preliminary indication of the urgent necessity of such a power in the circumstances of the AmericanCommonwealth, I submit that it may be anequally necessary power in the Commonwealth of Australia. A question of the most fundamental character, involving the interpretation of the Constitution upon some matter of vital importance, may arise in a matterof ordinary litigation, and, unless there be power to remove such a case from the State Court in which it is being tried to the High Court, it would have been possible - as the honorable and learned member for South Australia, Mr. Glynn, has pointed out more than once - that the HighCourt might be avoided altogether. In acase of that kind, the decision might have beengiven, in the first instance, in some inferiorState tribunal. It might then have been taken, upon appeal, to the Supreme Court of a State, and carried direct to thePrivy Council, without havingbeen considered by the High Court. Such a proceeding might have been followed in connexion with a case, the decision ofwhich might go to the very roots of the Federal power. It might occur in regard toa caseinvolving some interpretation of the Constitution, affecting, perhaps, a large body of Federal legislation ; affecting the courts themselves, and the powers of thisParliament.

Mr Watson - Would not the clause we have just passed havesome bearing upon such a case?

Mr DEAKIN - Yes. It has a direct bearing upon it. One of the chief reasons for its insertion was to enable us to escape this danger.

Mr Glynn - It is a reserve method.

Mr DEAKIN - Yes. This is also necessary, because cases might occur in which it mightbe to the advantage of the parties themselves that it shouldbe removed at once to the High Court. Myhonorable and learned friend knows that the only power given to us by the sub-clause of the preceding clause which we have just discussed is in regard to appeals. It refers to a case which will have been heard as of first instance in a State Court, which may have gone before the Supreme Court of the State on appeal, and which will then, under that provision, be brought before the High Court. But if it be perceived at the very outset of the case that a vital Federal question involving some decision of farreaching importance must arise, it will be decidedly to the advantage ofthe parties if , instead of waiting for the appeal stage in the State Court, it is removed at once to the High Court. If its importance is so clear, and its Federal operation so extensive that it is manifestly a cause in which the decision of the inferior court would not be allowed to stand unchallenged by the unsuccessful party, it is much better in such a case - in which the ordinarycourse would be totake it on appeal to ' the Supreme Court of a State, and then to the High Court, before sendingit on to the Privy Council- to have the power to take a short cut and bring it at once before the High Court. In that way a distinctively Federal matter would be dealt with by a distinctively Federal Court.

Mr Thomson - But this clause would enable theAttorney-General to remove any case.

Mr DEAKIN - Yes. It is impossible to foresee in what case an issue of the kind I have referred to may arise. If the honorable member thinks that the expression used in this clauseis too wide, and that we can embrace the necessary cases by some other form of words, I shall be happy to listen to a suggestion in that direction. The provision is set forth in this general manner, because it is impossible to foresee or, as far as I am able to judge, to describe by definition, those cases in which these point's, and these alone, will occur. This is one of the instances in which if we desire to make the power effective, we must make it extremely broad.'' In these circumstances I thinkthe sense of the Committee will be that it is emphatically necessary, not only in order that we may have a Federal interpretation of the Constitution or of the Commonwealth statutes on any vital question, but to spare the litigants themselves the cost of proceeding through the varying stages, to be able to say that the case shall be removed to the High Court directly it becomes evident that sucha question has been raised and must necessarily be settled.

Sir John Quick -Why should there be any interference with the litigants by the Attorney-General?

Mr DEAKIN - I shall deal with that matter presently.

Sir John Quick - But the honorable and learned gentleman cannot separate it.

Mr DEAKIN - I think we can distinctly separate it. I am dealing now only with cases in which either party to a suit that has arisen in a minor court in any one of the States perceives directly the pleadings are exchanged, or as soon as the hearing is commenced, that some important constitutional question is involved. Such a party has the power of saying - " I object to be taken , from this court to the Supreme Court ofa State, then to the High Court, and, perhaps, ultimately to the Privy Council.Ishall take the short cut of stopping this action in its earlier stages, andtaking it direct to the High Court."

Mr McCay -Would that case be taken to theNisi Prius Court - would it be heard by a single Judge?

Mr DEAKIN - Itmay be.

Sir John Quick - It does not say so.

Mr McCay - If it were heard by a single Judge it would not carry the AttorneyGeneral's object any further.

Mr DEAKIN - It would help the litigant to this extent - that he would avoid whatever stages had not been passed in the inferior court, as well as the appeal to the Supreme Court.

Mr A McLEAN (GIPPSLAND, VICTORIA) - But perhaps the parties would be satisfied with the decision of the court in which the case originated.

Mr DEAKIN - A case in which both parties are satisfied will not be removed. But it is absolutely necessary that the Attorney-General should have some power of removal. I am dealing now, however, with the power of the parties. If either party to a case flunks that its hearing and final settlement would be facilitated by going direct tothe High Court, instead of working his way through the States Courts, this clause will enable him to take that short cut, and as such I take it that it should commend itself to honorable members.

Mr Watson - Under the preceding clause parties have the right of appeal from a single State Judge to the High Court.

Mr DEAKIN - They have the option.

Mr McCay - Does not the AttorneyGeneral see that this power might be made an engine of oppression ?

Mr DEAKIN - What procedureinlaws which allows an appeal or any fresh proceeding may not be made an engine of oppression ?

Mr McCay - But we need not add another to the list.

Mr DEAKIN - We are obliged to adopt this course. The honorable and learned member knows that if he followed out the principle he has enunciated, it would be necessary to have a new Procedure Act, and new measures of jurisprudence which would cut down the exist ing practice, which is equally capable of misuse. The fact that the Federal features of a case necessitate a prompt Federal judgment is worthy of recognition in the interests of litigants themselves. Every power capable of use is capable of abuse. That is true not only of legal powers, but of every power which exists. Th6 more strength a machine has to perform its work the greater the danger if it is misapplied. The Committee must consider that the important part of section 74, which requires that questions as to the limits inter se, of the constitutional powers of the Commonwealth, or of a State or States, shall not be taken from the High Court, without the consent of that body, to the Judicial Committee of the Privy Council, may become a dead letter unless it is safeguarded by provisions of which this is one and an effective one.

Mr McCay - Is there a case of that kind which is not covered by the clause just passed?

Mr DEAKIN - That provides an appeal - as the last stage of a series of appeals.

Mr McCay - I understood the honorable and learned gentleman's contention was that a litigant might get to the Privy Council on an inter se question behind the back of the High Court. How could he, in view of the clause we have just passed ?

Mr DEAKIN - If I conveyed that to the mind of the honorable and learned member, I did not intend to do so. What I pointed out was that we have one provision under which suits, after they have passed through all the stages in which the States Courts can deal with them, are brought before the High Court on appeal. I used the word "provisions" deliberately, because this is another provision which will enable us to interrupt that long course of procedure in certain cases, and in those cases, directly it becomes clear that a question of the character to which I have referred is being raised, there will be a means of removal.

Mr Watson - If litigants saw before them a prospect of having to go through a State Supreme Court to the High Court, would they not exercise their option in the lower court of going direct to the High Court from a single State Judge ?

Mr DEAKIN - They have the power to do that under the Bill.

Sir John Quick - I asked the question just now, and the Attorney-General replied that they could go direct from a State Police Court to the High Court.

Mr DEAKIN - That is perfectly true, but what I am coming to now is the power proposed to be vested in the AttorneyGeneral of intervening in any suit. That is the second proposal in this clause. I take it that it would be the duty of the Attorney - General to intervene at any stage of a case at which it became plain that a serious constitutional question was arising. The honorable and learned member for Darling Downs interjected that it would probably appear on the pleadings, but it will be admitted that whenever it arises it would be desirable that the suit should be transferred at once to the High Court because such a question can only be finally dealt with by the High' Court, and, in fact, it rests with the High Court under the Constitution to say whether it shall ever be dealt with by any other court. Those who desire to shorten legal proceedings, and to see finality obtained as soon as possible, will surely not complain of a provision which enables cases of that particular character to be brought to the speediest possible trial in the shortest possible way ?

Mr McCay - Is it contemplated to remove a cause to a hearing before a single Judge of the High Court, or to the Appellate High Court direct ?

Mr DEAKIN - It can go, under this clause, to a single Judge of the High Court.

Mi-. McCay. - That means a nisiprius hearing with a subsequent appeal, which is exactly what is covered by the previous clause.

Mr A McLEAN (GIPPSLAND, VICTORIA) - Would the AttorneyGeneral pay the costs of the litigants where he intervenes ?

Mr DEAKIN - That is a question for the Committee to consider.

Mr Conroy - If he would all suits would be removed.

Mi-. DEAKIN.- If honorable members will look at the clause they will see that it provides that a suit -

May at any stage of the proceedings before final judgment be removed into the High Court under an order of the High Court.

That order will be made upon such terms as the High Court may think fit, and honorable members will see that by clause 46 it is provided that -

When the cause is removed into the High Court under the provisions of this Act the High Court shall proceed therein as if the cause had been originally commenced in that Court, and as if the same proceedings had been taken in the cause in the High Court as had been taken therein in the Court of the State prior to its removal.

That indicates the stage at which it would be taken up. For instance, if it was a removal whilst still in the court of first instance it would go before a single J udge ; but if it had passed' the court of first instance, and reached the appeal stage, it would go to the High Court in its appellate jurisdiction.

Mr McCay - If we assume that a cause is taken from the Court of first instance, what saving would there be?

Mr DEAKIN - This saving: that it would get at once to a Federal J udge whose particular business it is to deal with Federal issues, who will be dealing with them every day, and who may, therefore, be expected to deal with the cause more rapidly and more definitely than it is likely to be dealt with by some tribunals before which a litigant may find himself. As it stands, this power of removal safeguards every power of appeal with which we have been dealing. The power of removal will be useful to litigants, and it may be extremely valuable to the Commonwealth as a whole when exercised by the AttorneyGeneral, as it would be exercised, only in cases meriting that special and extraordinary interference. No Attorney-General could be found who would lightly or willingly intervene in litigation in order merely to change the tribunal before which a cause was being heard. It would require to appear upon the face of it that an important Federal issue was involved.

Mr Thomson - An Attorney-General who was trying to build up the High Court might intervene.

Mr DEAKIN - Many matters might be suggested, similar to the illustrations already given, in which it is desirable that the business should be dealt with by the High Court, which will be able, not only to deal with it more speedily, but upon more consistent and uniform principles than we can expect every particular tribunal before whom it may come in the States to apply.

Mr McCay - That argument applies only to the Appellate High Court, and not to a Judge of the High Court of first instance. Those Judges will differ among themselves as much as do the Judges of the States.

Mr DEAKIN - Still I think the High Court Judges would be better able to deal with these questions. If the Committee consider that the power of removal can be safeguarded effectively by making it a removal always to the appellate jurisdiction of the High Court, we can consider that proposal.

Mr McCay - It would be removal only on appeal then.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It would have to be a matter involving some hundreds of pounds. This provision gives much wider grounds.

Mr DEAKIN - Very much wider. Under this provision a cause involving a matter of £10 or £5 might be removed.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It gives the right to order a fair trial.

Mr DEAKIN - I do not assert that removal is essential to that. Sometimes that can be obtained without this mode of removal.What I wish to impress upon the Committee is the importance of the power, and at the same time my entire willingness to consider any proposal that will safeguard removals, and which authorize it only upon reasonable and proper grounds, so as to prevent it being made what one of my honorable friends calls an instrument of oppression. I am perfectly prepared to consider any limitations either of the matter to be removed or the manner of removal. I have no desire to multiply proceedings or to increase costs.

Mr McCay - I suggest the insertion of the words " on appeal " after the word " pending " to begin with.

Mr DEAKIN - What I desire is to retain this power as a safeguard, in order that the class of cases for which the Federal Court is specially created, and to decide which it will exist, may be brought before it when necessary, in the most summary and inexpensive manner. That is the design underlying all the removal clauses, and I hope I shall have the assistance of honorable members in shaping them in any better form than is at present proposed to achieve that end. I do not desire that they should be unduly elaborate, coercive, or cumbrous. I hope that honorable members are agreed as to the necessity of possessing a power of removal, and am willing to accept their assistance to so safeguard its exercise, and the manner of its exercise, as to meet all the objections we can.

Mr. CONROY.(Werriwa).-If the powers conferred in clauses42, 43, and 44 had remained, clause 45would probably have been rightly drawn, but since this Bill was introduced we have started upon entirely different lines. We are now trying to secure that the High Court tobe created shall be purely an appellate court, and regarding, it as an appellate court, especially in view of the alteration we have made in clause 41, I cannot see how clause 45 can possibly be necessary. It may work much evil, andit should therefore be eliminated.If the Attorney-General drafts a clause to deal with cases, pending appeal or on the lines lately suggested by himself, it might , meet with a different reception from the Committee. At present we cannot disguise the fact that this clause is altogether too wide, and , would allow the Attorney-General to control and to entirely alter the jurisdiction which we have decided to vestin the High Court. The honorable and learned gentleman would, of course, in his opinion,be rightly exercising his powers under this clause, in giving original jurisdiction to the High Court. Any one can see that that was the honorable and learned gentleman's intention in regard to it. If somelater Attorney-General is of the same opinion honorable members can imagine thedifficulty we shall be met with-we shall have gone altogether outsideof what the Bill as amended by the Committee is intended to provide for. As theclause is drawn, we have no option butto exciseit ; butit could be drafted in a very much narrower form to meet the class of cases which. the AttorneyGeneral has suggested. Perhaps the honorable and learned gentleman, upon recollecting that this clause was drawn when very much larger powers were provided for under the Bill, will see his way to withdraw it.

Mr Thomson - We have restricted the power of the High Court, and we are now being asked to expand it.

Mr CONROY - Really this clause amounts to that. I remind the Committee that, under clause 15 -

Any Justice of the High Court, sitting alone, may exercisein court, or, in the cases hereafter specified; in chambers, all or any part of the jurisdiction of the High Court.

So that, so far from any savingof time being secured bythis clause, considerableadditional delay might be involved . There would, for example, be a removal to a Justice of the High Court, and then the right of appeal would still continue from the J ustice of the High Court to the Appellate High Court. There could be no possible saying of time under those circumstances. While the Supreme Courts of the various States are practically always ready to give their decision, it will, be admitted that, considering the limited number of Judgesof the High Court which the Committee seems likely to agree to, the delay under this proposal will be very much greater than without it. However, the chief objection I have to the clause rests on the ground thatwe are here being asked to extend a power which has been removed from the previous clauses by the Committee. So far as we could take it away, the Committee has taken away the whole of the original jurisdiction proposed to be conferred upon the High Court, and our desire has been, as far as possible, to create an appellate court only. Two principles were at first involved, the giving of appellate and also of originaljurisdiction, and this clause 45 deals with questions of original jurisdiction, as if no alteration whatever had been made in the preceding clauses. The very fact that the Attorney-General was unable satisfactorily to answer the question put to him by the honorable and learned member, for Corinella should preclude us from accepting the clause as it stands.

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