THE FEDERAL JURISDICTION OF STATE COURTS
By K. H. BAILEY, M.A., B.O.L. (Oxon.), LL.M. (Melb.),
Profes80r of Public Law in the University of Melbourne.
The second edition of Sir Harrison Moore's Commonwealthoj Australia
contains a characteristically penetrating account of the law as to the
federal jurisdiction of State Courts, as it stood in 1910.1 There is also
a learned and critical but not very accessible discussion, taking note of
some more recent judicial decisions, in a memorandum submitted in 1928
to the Royal Commission on the Commonwealth Constitution by Mr.
Owen Dixon K.C. (as he then was) on behalf of a committee representing
the Victorian Bar.2 The present writer aims at little more than a restate·
ment. He has been emboldened to attempt it by the difficulty he has
himself experienced, despite the assistance derivable from the earlier
literature on the problem, in working on some of the judicial decisions.
The power given to the Commonwealth Parliament by s. 77 (iii) of
the constitution, " to invest any court of a State with federal jurisdiction,"
is one of the original features of Australian constitutional law. The
general conception of a 'federal jurisdiction' over certain classes of
matters of distinctively federal concern comes from the United States
model. 3 But in the United States this jurisdiction is exercised exclusively
by a hierarchy of federal tribunals. The burden which such a system
would have imposed on the small population of Australia gave rise to
the expedient adopted in s. 77 (iii) , of authorizing the Commonwealth
Parliament to make use for federal purposes of the existing judicial
organization of the States, just as the Imperial Parliament has made use
of it for admiralty purposes.
The scheme of the constitution therefore was to vest " the judicial
power of the Commonwealth" in three repositories: (i) the High Court
of Australia, which was provided for in the constitution itself; (ii) such
other 'federal courts' as the Parliament should think fit to create; (iii)
such other courts as the Parliament should invest with federal jurisdiction.
The intention was clearly to place a State court exercising federal jurisdiction on the same general footing as the federal courts which should
be created by the Parliament. Their jurisdiction was in both cases to be
fixed by the Parliament; their decisions were alike to be subject to appeal
to the High Court. 4 For this similarity there was, of course, good reason.
The State courts were to be used, at the discretion of the Commonwealth
Parliament, instead of additional federal courts: as" substitute tribunals,"
in the words of Starke J.5 The constitution carefully avoided calling
them 'federal courts'; and it has been held that the Commonwealth
Parliament must use them as it finds them, without any interference
with their organization. 6 But the High Court has itself insisted on the
entirely separate capacity in which a State court acts when exercising
State and federal jurisdiction respectively. 7 Indeed the constitution
1.
2.
3.
4.
5.
6.
7.
Chap. VII.
Minntes of Evidence, pp. 787-90.
In a paper in (1935), 51 L.Q.R., at pp. 606·8, Mr Jnstice Dixon comments on the singularity of
this conception.
ss. 77 (i), 77 (iii), 73.
35 C.L.R., at p. 116.
Le Mesurier v. Connor, (1929) 42 C.L.R. 481. A limited exception is permitted by s. 79 of the
constitntion.
Hannah v. Dalgarno, (1904) 1 C.L.R. 1, at p. 10.
109
llO
RES JUDICATAE
appears, in the writer's opinion, to treat a State court exercising federal
jurisdiction as part of the federal judicature. 8
Two main problems have arisen in the interpretation of s. 77 of the
constitution. The first is whether sub-sections (ii) and (iii) authorize
the substitution, which s. 39 of the Judiciary Act purports to effect, of
, federal' for 'State' jurisdiction in certain matters. The second is
whether the Commonwealth's powers under s. 77 (iii) must be exercised
in subordination to Orders-in-Council, regulating appeals from State
courts, issued under the (Imperial) Judicial Committee Act, 1844. Only
the first problem will be dealt with in the present article.
I. THE PROVISIONS OF THE JUDICIARY ACT.
In ss. 38, 38A and 39 of the Judiciary Act the Commonwealth Pa.rliament has exercised each of the powers entrusted to it by the constitution
with regard to State courts. Those powers are three. But before considering them it may be recalled that ss. 75 and 76 of the constitution
mention nine classes of 'matters' in which the High Court either is
given original jurisdiction by the constitution itself (s. 75) or may be
given original jurisdiction by the Parliament (s. 76).9 Then s. 77 (iii) of
the constitution provides, as already noted, that with respect to any 0/
the matters mentioned in ss. 75 and 76 the Parliament may make laws
"investing any court of a State with federal jurisdiction." Next in
logical order for present purposes, but by a prior provision in the literal
order, s. 77 (ii) enacts that, again with respect to any 0/ the matters mentioned
in ss. 75 and 76, the Parliament may make laws" defining the extent to
which the jurisdiction of any federal court shall be exclusive of that
which belongs to or is invested in the courts of the States." Thirdly,
s. 73 empowers the High Court to hear appeals from all courts exercising
federal jurisdiction, but "with such exceptions and subject to such
regulations as the Parliament shall prescribe."
The High Court of Australia was thus designated as the repository,
actual or prospective, of jurisdiction over the nine heads of litigation
mentioned in ss. 75 and 76 of the constitution. But it was not the
exclusive repository (though under s. 77 (i) and (ii) it could be made such).
Litigation falling under many, and indeed most, of the heads mentioned
in ss. 75 and 76 would naturally be initiated in State courts, both before
and after the establishment of the High Court, and would be dealt with
in the State courts in the ordinary course of applying the law. This
would have happened even without s. 5 of the" covering clauses," which
8. Note however the query on this point in the iolnt jndgment of Knox C.J., Rich and Dixon IJ.,
in Le MesurillT v. Connor, (1929) 42 C.L.R., at p. 498.
g. s. 75... In all matters(i) arising nnder any treaty:
(il) affecting consuls or other representatives of otiler countries:
(iii) in which the Commonwealth, or a person suing or being sned on behalf of the Com·
wealth, is a party:
(iv) between States, or between residents of different States:
(v) in which a writ of mandamus or prohibition or an injunction Is songht agalnat aD.
officer of the Commonwealth
the High ('A)urt shall have original juriSdiction."
8. 76 ... The Parliament may make laws conferring original jurisdiction on the High Court In
any matter(i) arising nnder this constitution, or involving its interpretation:
(il) arising under any laws made by the Parliament:
(iii) of admiralty and maritime jurisdiction:
(iv) relating to the same sUbiect-matter claimed under the laws of different States."
THE FEDERAL JURISDICTION OF STATE COURTS
111
makes the constitution and the laws of the Commonwealth binding on
the courts, judges and people of the States. A State court would thus
in the ordinary course have jurisdiction, for example, in matters arising
under the constitution or involving its interpretation, and in matters
arising under laws made by the Parliament of the Commonwealth. The
same appears to be true of all the other heads of jurisdiction mentioned
in s. 76, and also of most of those mentioned in s. 75. But it appears to
be the accepted view that without express investiture from the Commonwealth under s. 77 (iii) a State court could not, for instance, have entertained a suit against the Commonwealth, or have issued prohibition or
mandamus against an officer of the Commonwealth.! 0
The position described above was clearly recognized by the draftsmen
of the constitution. Thus s. 77 (ii) draws a distinction between the jurisdiction which' belongs to ' State courts and that which is 'invested in '
them. The former is their' State' jurisdiction, even though it exists
in respect of some of the matters mentioned in ss. 75 and 76. It belongs
to them by virtue of State law, without any necessity for Commonwealth
action. The latter, on the other hand, is the' federal' jurisdiction of
State courts. They could not exercise any of it at all except as the
Parliament invested them with it.
This was the situation dealt with by the Judiciary Act in 1903.
Section 30 added to the original jurisdiction of the High Court some of
the matters mentioned in s. 76-in particular, matters arising under the
constitution or involving its interpretation. Section 38 made" exclusive
of the jurisdiction of the several courts of the States" certain portions
of the jurisdiction of the High Court-notably suits between Commonwealth and States. Section 38A, inserted in 1907 after the contretemps
over Webb v. Outrimll, makes the High Court's jurisdiction exclusive of
that of the Supreme Courts of States in what may be called 'inter se
constitutional questions,' i.e., the questions governed by s. 74 of the
constitution. Section 39 runs as follows :(1) The jurisdiction of the High Court, so far as it is not exclusive of the
jurisdiction of any Court of a State by virtue of either of the last two preceding
sections, shall be exclusive of the jurisdiction of the several Courts of the
States, except as provided in this section.
(2) The several Courts of the States shall within the limits of their several
jurisdictions, whether such limits are as to locality, subject-matter, or other·
wise, be invested with federal jurisdiction, in all matters in which the High
Court has original jurisdiction or in which original jurisdiction can be conferred
upon it, except as provided in the last two preceding sections and subject to
the following conditions and restrictions : (a) Every decision of the Supreme Court of a State, or any other Court
of a State from which at the establishment of the Commonwealth
an appeal lay to the Queen in Council, shall be final and conclusive
except so far as an appeal may be brought to the High Court.! 2
Several points in this section may be noted in passing. In the first
place, s. 39 (1) is an exercise of the power, given in s. 77 (ii) of the constitution, to make the High Court's jurisdiction exclusive of that of State
10. Moore, Commonwealth of Australia, 212·3; 37 C.L.R., at p. 405 (Isaacs J.); Ex p. Goldrinll,
11.
(1903) 3 S.R. (N.S.W.) 260.
[1907] A.C. 8I.
12. Paragraphs (b), (c) and (d) impose further conditions, not for present purposes material, but producing some remarkable results. See Royal Commission on the Constitution, Minutes of Evidence,
~~
.
112
RES JUDICATAE
courts. Clearly it could operate only in respect of the jurisdiction which
the High Court at any given time might possess, either by virtue of s. 75
of the constitution or by virtue of Parliamentary grant under s. 76. In
any of the matters mentioned in s. 76 in respect of which Parliament had
refrained from vesting jurisdiction in the High Court, there would obviously
be nothing which could be made exclusive. Notably, s. 30 of the Judiciary
Act omitted to grant to the High Court any jurisdiction in "matters
arising under any laws made by the Parliament "13 (unless of course they
fell under one of the other headings as well). Consequently, s. 39 (1) did
not operate, and did not purport to operate, to exclude State courts from
the jurisdiction they had been exercising in matters arising under Commonwealth laws. 14 This was part of their 'State' jurisdiction, which
, belonged to' them, and s. 39 (1) did not deprive them of it.
In the second place, we may note that s. 39 (2) exercised to the full
the Parliament's power of investing State courts with federal jurisdiction.
With the exceptions created by ss. 38 and 38A, State courts were invested
with federal jurisdiction in all the nine classes of matters mentioned in
ss. 75 and 76 of the constitution. In many of these matters, the High
Court had a concurrent jurisdiction, by virtue either of s. 75 of the constitution or of s. 30 of the Judiciary Act. But, as we have seen, the
Parliament had not exercised to the full its power to confer on the High
Court original jurisdiction in all matters, for example, arising under
Commonwealth laws. In such cases therefore the State courts were the
only repositories of 'federal jurisdiction.' But, as we have also seen,
it was precisely in respect of these matters that s. 39 (1) necessarily stopped
short of depriving the State courts of their State jurisdiction. In many
matters arising under Commonwealth law therefore it appears that State
courts must be regarded as possessing a twofold jurisdiction-that which
, belongs to' them under State law, and that which is 'invested in'
them by s. 39 (2) of the Judiciary Act.
In the third place, attention should be given to the limits within
which alone s. 39 (2) ((1,) of the Judiciary Act purports to abrogate appeals
from State Supreme Courts to the Privy Council. The paragraph is
expressed as a condition attached to the investing of the State courts
with federal jurisdiction. With appeals to the Privy Council from a
State court exercising State jurisdiction it clearly has nothing whatever
to do. With the King's prerogative to grant special leave to appeal
from a State Supreme Court s. 39 (2) ((1,) has likewise nothing whatever
to do, no matter whether the litigation be in the State or the federal
jurisdiction of the court. The decisions of the Supreme Court are declared
to be 'final and conclusive.' This formula, as is shown by ss. 73 and
74 of the constitution, does not exclude the appeal by special leave, but
does exclude the appeal as of right, or by leave of the Dominion court.
Sir Harrison Moore summed up as follows the effect of s. 39 of the
Judiciary Act :1Ii
" Briefly, the scheme of that section is to embrace the whole of the matters
of federal jurisdiction which it is not intended to give to the High Court exclusively, and to declare, first, that the State Courts shall according to their nature
13. cf. s. 76 (il).
14. Unless, again, such matters fell also under one of the other, and excluded, headings, e.g., a matter
in which the Commonwealth is a party: s. 75 (iii) of the constitution.
15. Oommonwealth of .dustralia, 2nd Edn. (1910), p. 217.
THE FEDERAL JURISDICTION OF STATE COURTS
113
and degree have jurisdiction in all of them, whether they are matters of which
the Court would have jurisdiction under State law or not; secondly, that no
jurisdiction shall be exercised by the State Court in any of such matters except
as federal jurisdiction."
In the last clause the words "any of such matters" are too wide.
State jurisdiction is excluded only in those matters in which original
jurisdiction is vested in the High Court. The area within which federal
jurisdiction is vested is wider than the area within which State jurisdiction
is taken away.
n. THE PRIVY COUNCIL'S VIEW OF s. 39.
In Webb v. Outrim 16 in 1907, the Privy Council held competent an
appeal by leave of the Supreme Court of Victoria in a matter involving
the interpretation of the constitution. Clearly, s. 39 of the Judiciary
Act purported to abrogate such an appeal; for such matters had by
s. 30 of the JUdiciary Act been included in the original jurisdiction of the
High Court; s. 39 (1) had purported to deprive the State courts of the
State jurisdiction therein which otherwise they would certainly have
had; and s. 39 (2) purported to invest the State courts with federal
jurisdiction therein, but without any appeal to the Privy Council except
under the prerogative. The decision in Webb v. Outrim therefore inevitably
involved a determination that s. 39 was, in whole or in part, invalid.
But exactly what the Privy Council did hold is very hard to discover.
And the decision in Webb v. Outrim has certainly been the subject of a
wide range of explanations. It may be useful to examine it afresh and
apart from all subsequent commentary, whether judicial or extra-judicial.
Webb v. Outrim arose from the attempt of the Victorian Commissioner
of Taxes to enforce against a Deputy Postmaster-General of the Commonwealth payment of income tax under State law. The defence was that
on its true construction the Commonwealth constitution impliedly prohibited the State from including Commonwealth officers within the scope
of its taxing laws.17 In the Supreme Court of Victoria, Hodges J. followed
the High Court in finding for the defendant, but gave the plaintiff leave
to appeal to the Privy Council.1 8 No plainer case for the operation of
both s. 39 (1) and s. 39 (2) of the Judiciary Act could well be imagined.
As intervener, the Commonwealth contended accordingly that only the
prerogative appeal (if any) was competent, and that in the circumstances
the Judicial Committee should not give special leave to appeal.l 9
The rival jurisdictional contentions were dealt with very perfunctorily
by Lord Halsbury. "Their Lordships are disposed," he said, "to adopt
the reasoning of the Supreme Court in giving leave to appeal."20 In the
writer's opinion, therefore, it is plain that Lord Halsbury did not regard
the case as one requiring special leave. But it is disappointing to find
that their Lordships added nothing to the reasoning of the court below.
For in the Supreme Court of Victoria the question of jurisdiction had not
even been fully argued, both parties desiring that the matter should be
decided by the Privy Council. Sir Harrison Moore, who appeared for
16.
17.
18.
19.
20.
[1907] A.C. 81.
D'Emden v. Pedder, (1904) 1 C.L.R. 91; Deakin v. Webb, ibid, 585.
[1905j V.L.R. 463.
[1907 A.C. 81, at p. 82.
ibid, p. 91.
114
RES JUDICATAE
the Commonwealth official, drew the attention of the court to the issues
involved. But Hodges J. did not profess to deal exhaustively with the
question. 21
" I propose only to refer to the most important sections and to make 8.
few crude observations on their construction, so as to facilitate as far aB I can
the determination of this question by the ultimate Court of Appeal."
The judgment of Hodges J., thus modestly introduced, must in the
writer's view be taken to have received the full endorsement of the Privy
Council.
The reasoning by which Hodges J. reached the conclusion that s. 39
did not preclude him from giving leave to appeal to the Privy Council
may in the writer's opinion be reduced to two propositions. First, that
on the true construction of s. 77 of the constitution he could not be, and
hence had not been, invested with any federal jurisdiction in the class of
matters to which Webb v. Outrim belonged; paragraph (a) of s. 39 (2)
therefore did not apply. -Second, that (even assuming federal jurisdiction
to have been invested) the power to invest State courts with federal jurisdiction should not without direct words be given a construction which
would enable the Commonwealth Parliament to take away a right conferred by an Order-in-Council under the (Imperial) Judicial Committee
Act, 1844. Where the constitution did intend to deal with appeals to the
Privy Council, it did so expressly, as in ss. 73 and 74. Under the Colonial
Laws Validity Act, therefore, s. 39 (2) (a) would be void in so far as repugnant to the Order-in-Council.
The second proposition needs no further present explanation. But
it may be noted that in the view Hodges J. took of the effect of the vesting
portions of s. 39 (2) the validity of paragraph (a) did not necessarily arise
for decision. Nevertheless, the view taken by Hodges J. on that point
was in the writer's opinion clearly endorsed by the Privy Council. And
it has since received the support of at least one .Australian judge. 22
The first proposition however into which the reasoning of Hodges J.
was analysed above should be further considered. His idea was that the
construction of s. 77 of the constitution must start from the fact, already
fully noted, that under State law the courts of the State were seised,
independently of any action by the Commonwealth, of jurisdiction in
most of the matters mentioned in ss. 75 and 76. 'Federal jurisdiction,'
therefore, must be defined for the purpose of s. 77 as jurisdiction in such
only of the matters mentioned in ss. 75 and 76 as would not and could
not come within the cognizance of a State court unless and until a Commonwealth Act gave such jurisdiction. A State court could thus be invested
with federal jurisdiction in such matters as suits against the Commonwealth. But it could not validly be invested with federal jurisdiction
in matters, say, arising under the constitution or involving its interpretation. For the State court already had jurisdiction in such matters. To
invest it with jurisdiction it already had was a mere nullity. Applying
this reasoning to the case before him, Hodges J. held that it was not a
matter in which he could validly be invested with federal jurisdiction at
all, and that in fact he was exercising State jurisdiction. 23
21. [1905] V.L.R. 463, at p. 465.
22. Higgins J. in Baxter v. CammissWner of Taus, (N.S. W.), (1907) 4 C.L.R. 1087, at pp. 1162-3.
23. [1905] V.L.R. 463, at pp. 468·9.
THE FEDERAL JURISDICTION OF STATE COURTS
115
In the writer's opinion, therefore, it is necessary, on a strict reading,
to treat the Privy Council as having decided in Webb v. Outrim that under
s. 77 'federal jurisdiction' could be invested in State courts only in
such matters as could not otherwise fall within their competence, and as
having expressed definitely, though obiter, the further view that even in
such matters the Commonwealth could not abrogate the appeal as of right
from a State court to the Privy Council.
Ill. THE HIGH COURT'S VIEW OF S. 39.
The High Court of Australia has several times had to consider the
validity of s. 39 of the Judiciary Act, in the light of Webb v. Outrim. On
the meaning of 'federal jurisdiction' in s. 77 (iii) there has been definite
and general dissent from the Privy Council's view. On the further question, however (the relation of s. 77 (ill) to the Imperial Orders-in-Council),
there has been a very close division of opinion.
In the same year in which Webb v. Outrim was decided, the High
Court heard an appeal, from a District Court in New South Wales, in
another action fol.' the recovery of State taxes from a Commonwealth
official. 24 The main issue was, of course, whether the High Court would
reverse its own earlier decisions in deference to the Privy Council's declaration, in Webb v. Outrim, that the doctrine of the immunity of instrumentalities did not apply to the constitution of the Commonwealth. But
the State raised a jurisdictional issue as well. The contention was first
that-as the Judicial Committee had held in Webb v. Outrim-the jurisdiction in the instant case had been State, not federal, and second that
even if it were federal jurisdiction the invalidity of s. 39 (2) (a) involved
the whole section in invalidity, so that no appeal lay direct to the High
Court. The latter argument was easily disposed of. Once concede
federal jurisdiction, and the appeal to the High Court lay by virtue of
s. 73 of the constitution itself, quite independently of the provision for
such an appeal in s. 39 (2) (b) of the Judiciary Act. But in any case it
could not be successfully maintained that the rest of the section was
inseverable from s. 39 (2) (a).25
In Baxter's case the majority of the High Court treated Webb v.
Outrim as having been primarily a decision not on the vesting parts of
s. 39 (2) but on the condition attached by s. 39 (2) (a); and there seems
to be more than a suggestion that the Privy Council had decided only
that the Commonwealth Parliament could not take away the prerogative
appeal. Nevertheless the majority of the court did give a reasoned
alternative construction of 'federal jurisdiction' in s. 77 (iii).26 This
construction was amplified some years later in Lorenzo v. Oarey.27
, Federal jurisdiction,' in this view, must be defined by reference not only
to its content but to its source. It is power, derived from the Federal
Oommonwealth, to hear and determine certain matters. This, if correct,
sweeps away at once the whole foundation of the reasoning of Hodges J.
in Webb v. Outrim. Though State and federal jurisdiction may include
2~.
25.
BMter 1). oommisSioner oj Tozatitm, (N.S.W.), (1907) 4 C.L.R. 1087.
Such a contention would have even less force to-day, In view of s. 15A of the Acts Interpretation
Act.
26. See especially 4 C.L.R., pp. 1141 et seq. (Isaacs J .).
27. (1921) 29 C.L.R. 243.
116
RES JUDICATAE
the same matters, they are not the same jurisdiction. To take away
State jurisdiction (as s. 39 (1) does) and then vest federal jurisdiction
(as s. 39 (2) does) is not to give back again what was taken away. It is
to give something different altogether. There is therefore no reason for
adopting the very restricted definition of 'federal jurisdiction' put
forward by Hodges J. In the writer's respectful opinion, the High Court
view is preferable. The covering words of s. 77 (iii) seem to him to give
the strongest possible support for it. Inverting the order of the words,
s. 77 authorizes the Parliament to invest State courts with federal jurisdiction "with respect to any of the matters mentioned in the last two
sections." In the view of Hodges J., Parliament could not do anything
of the sort. In his view, it was only in a very few of such matters that
federal jurisdiction could validly be vested in State courts. The language
of the section seems to the writer to require some such definition of federal
jurisdiction as the High Court has laid down.
In passing, it may be noted that in Lorenzo v. Garey the High Court
applied this definition of 'federal jurisdiction' to a case in which an
officer was proceeded against in a local court in New South Wales for a
breach of a Commonwealth law. This was clearly a case in which (as
noted above) s. 39 (1) does not purport to deprive the court of its State
jurisdiction, but s. 39 (2) does purport to vest federal jurisdiction.
" When federal jurisdiction is given to a State court and the jurisdiction
which ~longs to it is not taken away (said the court), we see no difficulty
in that court exercising either jurisdiction at the instance of a litigant."28
Accepting this interpretation of s. 77 of the constitution, one must
nevertheless admit that it does create difficulties. Some apparently
insoluble problems were mentioned in the memorandum, already referred
to, which was presented to the Royal Commission on the Constitution. zg
If the writer's analysis be correct, the High Court in Baxter's case
cannot be regarded as having merely distinguished Webb v. Outrim on the
jurisdictional point. It laid down a different principle of law as to the
meaning of s. 77 (iii) of the constitution, just as emphatically as it did
with regard to the immunity of instrumentalities. On the instrumentalities point, the majority of the court was at great pains to justify its
refusal to follow the Privy Council by reference to the role as interpreter
of the constitution cast for the High Court by s. 74 of the constitution.
The question being one of 'limits inter 8e,' and the High Court itself
having given a decision thereon in Deakin v. Webb,30 it was not difficult
to support the view that the Privy Council's decision should be treated
not as formally binding but only as having high persuasive authority.
If the writer's view be correct, a very similar problem arose also with
regard to the jurisdictional matter. An' inter 8e' question was plainly
involved, both in Webb v. Outrim and in Baxter's case-i.e., the question
whether the Commonwealth could invest State courts with federal jurisdiction, and deprive them of State jurisdiction, in the matters concerned.
On this question, there was no prior decision by the High Court when the
Privy Council came to decide Webb v. Outrim. But this can scarcely
make any difference to the authority of the Privy Council's views. The
28. ibid, at p. 252.
29. Minutes of Evidence, pp. 788-9 •.
30. (1904) 1 C.L.R. 585.
THE FEDERAL JURISDICTION OF STATE COURTS
117
doctrine of precedent appears to belong to the convention rather than
to the law of the constitution. There is much to be said for adopting
the convention that the High Court is entitled to treat as being only of
persuasive authority a decision of the Privy Council on an 'inter 8e '
constitutional question, save on the High Court's certificate under s. 74.
The validity of s. 39 of the Judiciary Act, and the Privy Council's
decision in Webb v. Outrim, were again considered by the High Court in
two subsequent groups of cases: Commonwealth v. Limerick Steamahip
Company and Commonwealth v. Kidma,n ;31 Commonwealth v. Kreglinger
and Fernau Ltd. and Commonwealth v. Bard8ley.32 All four cases except
Commonwealth v. Kidman were commenced as actions by private parties
against the Commonwealth; in Kidman'8 case the Commonwealth was
itself the plaintiff. In each case the Supreme Court of the State had
decided on the merits in favour of the Commonwealth, but (following
Webb v. Outrim) had given to the unsuccessful private party leave to
appeal to the Privy Council. 33 In each case, the Commonwealth appealed
to the High Court against the Supreme Court's order giving leave to appeal
to the Judicial Committee. 34 In three of the cases, there could never, it
appears, have been State jurisdiction, the Commonwealth being a party
defendant. These were the very matters in which, according to Hodges J.
in Webb v. Outrim, the Commonwealth Parliament could validly invest
a State court with federal jurisdiction. In the writer's view therefore
only Commonwealth v. Kidman was, on strict analysis, covered by Webb
v. Outrim. In the High Court, judicial opinion was divided. But in all
four cases the court by majority upheld the validity of s. 39 of the
Judiciary Act, and reversed the orders of the Supreme Courts giving
leave to appeal to the Judicial Committee. The fact that Webb v. Outrim
must be regarded as having been decided with regard to appeals in matters
in which there would prior to the Judiciary Act have been State jurisdiction
was clearly demonstrated. 35
In these two groups of cases, it became at last necessary to consider
(as it had not been necessary in Baxter'8 case or in Lorenzo v. Carey, since
both concerned only an appeal from a subordinate State court to the
High Court) the relation of s. 39 (2) (a) of the Judiciary Act to the Imperial
Orders-in-Council regulating appeals from State Supreme Courts. To
this question the writer hopes to return in a later article.
31. (1924) 35 C.L.R. 69.
32. (1926) 37 C.L.R. 393.
33; (1924) 24 S.R. (N.S.W.) 145; [1926] V.L.R. 310.
34. This was the situation envisaged twenty years before by Mr. H. B. Higgins K.C. (as he then was)
in a brief but illumiuating article on Appeals in Matters of Federal Jnrisdiction; (1904),2 Commonwealth Law Review 19.
35. See especially 35 C.L.R. 69, at pp. 93·5, per Isaacs and Rich JJ. But their Honours do not appear
to have adverted to the fact that Commonwealth v. Kidman could properly be regarded as on all
fours with Webb v. Outrim.