1907. BAXTER V. COMMIS SIONERS OF TAXATION (N.S.W.). Higgins J. H. C. OF A. The King in Council has always had authority to hear appeals from and finally review the decisions of all Colonial Courts whensoever erected, and on any and every subject: The Queen v. Joykissen Mookerjee (1); Falkland Islands Co. v. The Queen (2); In re Lord Bishop of Natal (3); Reg. v. Bertrand (4); In re Dillet (5); Anson, Constitution, 2nd ed., p. 465; Safford and Wheeler Privy Council Practice, pp. 699, 720. By the Act 3 & 4 Wm. IV. c. 41, a permanent Judicial Committee was created out of the Privy Council to hear the colonial and other appeals; and in the recitals of the Act appears an authoritative statement of the position :-" And whereas from the decisions of various courts of judicature in the East Indies, and in the plantations, colonies, and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council: And whereas matters of appeal or petition to His Majesty in Council have usually been heard before a committee of the whole of His Majesty's Privy Council, who have made a report to His Majesty in Council, whereupon the final judgment or determination hath been given by His Majesty." This recital applies unquestionably to decisions of all kinds, given by Courts of all kinds, whensoever created or to be created; and it applies to the High Court, except so far as the prerogative of the King is qualified, expressly or by irresist ible inference, by secs. 73 and 74 of our Constitution. Under this Act of Wm. IV. all the appeals are referred to the Judicial Committee, and this Committee makes a report or recommendation to His Majesty in Council" for his decision thereon as heretofore." It will be noticed that, legally, the decision rests with the King in Council. He is not under any compulsion to adopt the report of the Judicial Committee. "The judgment is the King's only; but by way of advice the councillors deliver their opinion, which he increaseth or moderateth at his royal pleasure”: Hudson's Collectanea Juridica, II., §iii. The order made is the order of the King in Council, although it recites the report of the Judicial Committee. He still remains "the fountain of justice," the ultimate exponent of the law, the highest and final Court of appeal. It is his duty to exercise an appellate juris (1) 1 Moo. P.C.C. (N.S.), 272, at p. 295. (4) L. R. 1 P.C., 520. 1907. BAXTER V.. SIONERS OF Higgins J. diction with a view, not only to ensure, so far as may be, the due H. C. of A. administration of justice in the individual case, but also to preserve the due course of procedure generally:" Reg. v. Bertrand (1) Are the words of sec. 74 of the Constitution sufficient to deprive the King in Council of this prerogative? Nay, moreare they sufficient to oblige the King in Council to accept as law (N.S.W.). whatever the High Court may decide as to matters within sec. 74; or do these words merely effect what they expressly say— prevent a suitor, who has had the advantage of the opinion of the High Court, from taking his case further to the King in Council, without the approval of the High Court? It has to be remembered that no prerogative right of the King can be taken away except by precise words; or, as it is sometimes put, an intention to diminish the prerogative cannot be inferred from an Act of the British Parliament, unless the terms are explicit to that effect, or are such as to make the inference irresistible: Théberge v. Laudry (2); Cushing v. Dupuy (3). This is a question as to the operation of a New South Wales Income Tax Act. How far do the provisions for the appeal to the King in Council from New South Wales Courts affect the matter? By the Act 9 Geo. IV. c. 83, sec. 15, His Majesty was empowered to make an order in Council, allowing “any person or persons feeling aggrieved by any judgment, decree, order, or sentence of the Supreme Court (of New South Wales), to appeal therefrom to His Majesty in Council in such manner, within such time, and under and subject to such rules, regulations, and limitations as His Majesty by any such orders in Council shall appoint and prescribe." Under this Act, an Order in Council was made November 13th 1850 prescribing that it shall be lawful for "any person or persons to appeal to Her Majesty in Her Privy Council "from any final judgment, decree, order, or sentence of any such Court," provided that the matter in dispute is over £500 in value, and provided that security be given for the prosecution of the appeal, and for costs, to the satisfaction of the Supreme Court. It will be observed that the words of this Act, and of the subsequent (1) L.R. 1 P.C., 520, at p. 530. (2) 2 App. Cas., 102, at pp. 106, 108. (3) 5 App. Cas., 409, at p. 417. 1907. BAXTER COMMIS SIONERS OF ΤΑΧΑΤΙΟΝ (N.S.W.). Higgins J. H. C. OF A. Act 7 & 8 Vict. c. 69, and of the Orders in Council thereunder are universal — any person aggrieved in the Supreme Court may appeal from any judgment. There is no limit as to subject matters, although there is a limit as to amount or value. These Acts are made by the same authority as the Commonwealth Constitution Act-the King and Houses of Parliament of Great Britain and Ireland-and these Acts and the Constitution Act must be read so as to give full effect to both, so far as the Constitution Act does not repeal the prior Acts expressly or by necessary implication. There is certainly no express repeal, no express amendment, of these prior Acts by the Constitution Act. There is nothing in the Constitution Act to show any intention to limit or qualify the right of appeal from the Supreme Court in respect of any judgment, or any point or matter in that judgment, whether it come under federal jurisdiction, or within the limited class of subjects referred to in sec. 74, or within any class of subjects whatsoever. The King in Council is not shorn of his authority to entertain the appeal of his New South Wales subjects from the Supreme Court, or of his right, on that appeal, to form and express his own conclusions on all relevant issues of law and of fact. He is not bound to accept the view of the High Court as expressed in cases which have gone to the High Court. He still retains his pre-eminence as the final interpreter of the law. He cannot, it is true, reverse an actual decision of the High Court unless the cause in which that decision has been given came before him by way of appeal, and it cannot come before him on appeal from the High Court, unless with the High Court's approval. In such a case-as for example in Deakin v. Webb (1) the decision of the High Court is final as between the parties to that cause. But though the King in Council cannot reverse a decision of the High Court in a case which has not come before him, there is nothing, that I can find, to limit his power to review, and, if need be, to overrule, any pronouncement of law made by the High Court, or by any other Court of his Dominions beyond the seas; and inasmuch as the King in Council has overruled the decision of this Court in Deakin v. Webb (1), I think it to be the duty of this Court to accept His (1) 1 C.L.R., 585. Majesty's official opinion as finally stating the law. I am there- H. C. of A. fore of opinion that this appeal should be dismissed. An application was made for a certificate of the High Court under sec. 74 of the Constitution. Pigott for the respondents, in support. Ferguson for the appellant. Woinarski for the Commonwealth. The application was refused for the reasons given in Flint v. Solicitor, for appellant, R. Sullivan, Sydney. Solicitor, for respondents, the Crown Solicitor for New South Wales. Solicitor, for intervener, Powers, Commonwealth Crown Appeal allowed. Judgment below reversed. C. A. W. 1907. BAXTER 2. COMMISSIONERS OF TAXATION (N.S.W.). June 8. VOL. IV. 76 ON APPEAL FROM A COURT OF PETTY SESSIONS OF VICTORIA. H. C. OF A. Appeal to Privy Council-Decision as to limits inter se of constitutional powers of MELBOURNE, May 21, 22, 23, 24; June 7, 8. Griffith C.J., The fact that a decision of the Privy Council, on a question of law as to the limits inter se of the constitutional powers of the Commonwealth and the States, is contrary to a previous decision of the High Court as to which a certificate under sec. 74 of the Constitution has been asked and refused, held not to be of itself a sufficient special reason for granting a certificate as to another decision of the High Court following its previous decision. The inconvenience caused by the existence of those contrary decisions held not to be a sufficient reason, Per Griffith C.J., O'Connor J. and Isaacs J.-That inconvenience can be removed by the Commonwealth Parliament exercising its powers under sec. 77 (II.) of the Constitution. Per Griffith C.J.-That inconvenience can also be removed by the Commonwealth Parliament making its grants to its servants subject to the right of the States to tax them. Per Higgins J.-Quare, whether, if a State income tax on salaries of federal servants is invalid under the Constitution, the Commonwealth Parliament can validate such a tax. APPEAL from a Court of Petty Sessions of Victoria. |