FEDERAL COURT OF AUSTRALIA
“An Australian Perspective on the Removal of Appeals to the Judicial
Committee of the Privy Council”
Remarks delivered at the
Conference in relation to the Caribbean Court of Justice
Faculty of Law, University of West Indies St. Augustine Campus
Trinidad
Tuesday, 21 January 2015
________________________________________________________________________________
The Honourable Justice Logan RFD
A Judge of the Federal Court of Australia1
Australian Historical Position
The extent to which there ought to be any restriction on a right, founded in royal
prerogative power, to appeal to the Judicial Committee of the Privy Council (Judicial
Committee) was a subject which antedated and very nearly derailed the federation on
1 January 1901 of the six British colonies in Australia so as to form the nation known
as the Commonwealth of Australia.
That there may be a need for some sort of Australian federation was considered at the
time when the British government progressively determined in the mid-nineteenth
century to divide the original Australian colony of New South Walesinto separate,
smaller, locally self-governing colonies. It gained particular momentum in the
1890’s. Two major constitutional conventions were held; one in 1891and another in
1897/1898. At each of these, draft constitutions for a federation were produced. The
draft adopted in 1898 formed the basis of a submission to the British government in
1900 for the approval by the British Parliament of an Australian federation. That draft
1
Also a judge of the Supreme and National Courts of Papua New Guinea. The views expressed in this paper are
personal, not those of either those Australian or Papua New Guinea courts.
2
contained the following clause, cl. 74, in relation to appeals to the Judicial
Committee:
Appeals to Queen in Council
74.
No appeal shall be permitted to the Queen in Council in any matter involving the
interpretation of this Constitution or of the Constitution of a State, unless the
public interests of some part of Her Majesty's Dominions, other than the
Commonwealth or a State, are involved.
Except as provided in this section, this Constitution shall not impair any right
which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative,
to grant special leave of appeal from the High Court to Her Majesty in Council.
But The Parliament may make laws limiting the matters in which such leave may
be asked.2
A restriction in these terms proved unacceptable to the British government. The
reasons for this were multi-factorial.
The responsible British Minister, the Rt Hon Joseph Chamberlain, the Colonial
Secretary, consulted each of the Australian colonial Chief Justices. Uniformly, they
were opposed to any curtailment of a right of appeal from what would become on
Federation State Supreme Courts to the Judicial Committee which then existed from
the several colonial Supreme Courts.3 In this view they were supported by large
sections of the legal profession in the colonies.4
British mercantile interests, which favoured uniformity of law throughout the British
Empire and were apprehensive as to whether Australian, as opposed to English,
judges would be as well disposed towards their interests, were also influential in
engendering opposition to the restriction submitted for approval.
2
3
4
Parliament of Australia, Constitution Conventions Database, 1898 Australasian Federation Conference, Third
Session, Commonwealth of Australia Bill, 1898: http://parlinfo.aph.gov.au/parlInfo/search/display/
display.w3p;adv=yes;orderBy=customrank;page=2;query=third%20session%20Dataset%3Aconventions;rec=9;resC
ount=Default (Accessed, 8 January 2015)
Quick and Garran, The Annotated Constitution of the Australian Commonwealth, reprint of 1901 edition by Legal
Books, Sydney, 1976 (Quick and Garran), p. 242.
Blackshield, Coper and Williams Eds, The Oxford Companion to the High Court of Australia, Oxford University
Press 2001 (Oxford HCA Companion), Entry, Privy Council, Judicial Committee of the, p 561.
3
When introduced into the House of Commons, the 1898 Convention draft of cl 74
was omitted altogether from the constitution which formed the Schedule to the
Commonwealth of Australia Constitution Bill. This was not acceptable to the
Australian delegates who had journeyed to London to seek the approval of the draft
constitution. For a time, it appeared that those delegates would return home without
approval of Federation. In the end, Mr Chamberlain produced a fresh draft of cl 74
which recorded the terms of a mutually acceptable compromise.5 That clause became
and remains s 74 of the Australian Constitution:
Appeal to Queen in Council
No appeal shall be permitted to the Queen in Council from a decision of the High Court
upon any question, howsoever arising, as to the limits inter se of the Constitutional
powers of the Commonwealth and those of any State or States, or as to the limits
inter se of the Constitutional powers of any two or more States, unless the High Court
shall certify that the question is one which ought to be determined by Her Majesty in
Council.
The High Court may so certify if satisfied that for any special reason the certificate
should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the
question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the
Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special
leave of appeal from the High Court to Her Majesty in Council. The Parliament may
make laws limiting the matters in which such leave may be asked, but proposed laws
containing any such limitation shall be reserved by the Governor‑General for Her
Majesty’s pleasure.
As can be seen, from the outset of Federation, the Australian constitutional position
was that there could be no appeal to the Judicial Committee from the High Court on
an inter se question, save by permission of the High Court. Such permission has only
been granted on one occasion.6 That was prior to the First World War when mutual
5
6
Quick and Garran, pp 244-245.
Colonial Sugar Refining Co v Commonwealth of Australia (1912) 15 CLR 182.
4
conceptions of relations between Australia and the United Kingdom were very
different to today. When, in 1985, such permission was last sought from the High
Court, it was refused, even though the application was made by a State AttorneyGeneral.7 The provision for it in s 74 of the Australian Constitution was described by
the High Court as, “the vestigial remnant of the hierarchical connection which
formerly existed between Australian courts exercising federal jurisdiction and the
Privy Council”. The High Court added:
Although the jurisdiction to grant a certificate stands in the Constitution, such limited
purpose as it had has long since been spent. The march of events and the legislative
changes that have been effected - to say nothing of national sentiment - have made the
jurisdiction obsolete. Indeed an exercise of the jurisdiction now would involve this
Court in passing the responsibility for final decision to the Privy Council in that class of
constitutional case which the Constitution marked out above all others as the class of
case which should be reserved for the final decision of this Court - and this at a time
when, as a result of the legislative changes already referred to, no other constitutional
cases can be taken to the Privy Council.
It would not be until 1968 that the Australian Parliament exercised its power to limit
appeals to the Judicial Committee.
That it was not until 1968 that this limitation power was exercised may well have
been referable, in the years immediately following the Second World War,to the
lengthy tenure as Prime Minister of the Rt Hon Sir Robert Menzies, probably the
greatest Australian lawyer of his generation not to have served in judicial office, and
to his particular view as to the worth of appeals to the Judicial Committee. Shortly
after retiring from politics, Sir Robert expressed that view in this way. He stated that
he could “see no reason why the Judicial Committee should have power to entertain
an appeal from any (his emphasis) decision of the High Court of Australia on the
interpretation of the Australian Constitution”.8 Having stated that, he continued:
7
8
Kirmani v Captain Cook Cruises Pty. Ltd [No. 2] (1985) 159 CLR 461.
Menzies, Robert, Afternoon Light, some memories of men and events, Cassell Australia, 1967, p 324 (Menzies).
5
In all other respects, I would preserve the power of the Privy Council to grant leave, in
matters of common law and equity, and all matters (excluding constitutional questions)
in which the decision is on a point of general interest and application in what we call
‘Common Law’ countries, which include not only Australia and New Zealand and the
United States but also a considerable number of Commonwealth countries.
In these fields of law, broad uniformity of decision has positive value, to students,
practitioners, and courts alike. A sort of central clearing-house is of advantage. If it
disappeared, by the complete abolition of the Judicial Committee appeal, separate lines
of decision would soon begin to emerge. Each country would in time develop its own
body of principles, and could afford to ignore development elsewhere. Standard textbooks, those invaluable adjuncts to practice which are now used in many countries,
would be replaced by purely local productions. ‘Why not?’ you may ask. ‘Let’s be
patriotic and have pride in ourselves!’
This is an engaging sentiment. But before we get carried away by it, we should
remember that such great elements as the Common Law, though they began in the
vicinity of Westminster Hall, are part of a common inheritance which has much to do
(as I think), with true civilisation. To break this inheritance into fragments may please
the immediate beneficiaries, but, before long, the estate will have gone.9
In 1968, appeals to the Judicial Committee in respect of matters in the High Court
entailing the exercise of federal jurisdiction or involving the interpretation of the
Australian Constitution or an Act of the Australian Parliament or statutory instrument
made thereunder were abolished, as were appeals to the Judicial Committee from any
other Federal or Territory Court.10 In 1975, this restriction was extended by
legislation so as to embrace any appeal at all from the High Court. 11 This later
restriction was necessarily subject to the jurisdiction theoretically retained in inter se
matters by s 74 of the Australian Constitution. It was to this legislative position that
the High Court referred in 1985 when refusing to grant permission to appeal in such a
matter.
9
10
11
Menzies, pp 324-325.
Privy Council (Limitation of Appeals) Act 1968 (Cth). At the time, Papua New Guinea was an Australian external
territory and so this Act terminated any right to appeal to the Judicial Committee from a case originating in PNG.
On independence, the PNG Constitution did not provide for a resurrection of this right. The Supreme Court of PNG,
constituted rotationally from the judges of the National Court of PNG is that country’s final court of appeal.
Privy Council (Appeals from the High Court) Act 1975 (Cth).
6
By 1975, the practical, if not formal, position in Australia was that there could be no
appeal to the Judicial Committee from the High Court or in respect of any matter
entailing the exercise of federal jurisdiction. Appeals directly to the Judicial
Committee from State Supreme Courts in respect of matters not arising in the
exercise of federal jurisdiction were still open. This embraced cases entailing the
nature and extent of common law or equitable rights or involving the interpretation of
a State Constitution (unless an inter se question was entailed) or statute.
By
deliberate omission of reference, a right of appeal to the Judicial Committee from
State Supreme Courts had been preserved in Joseph Chamberlain’s compromise draft
of what became s 74 of the Australian Constitution. This right of appeal in respect of
State matters would remain until its abolition by the passage and simultaneous
commencementin 1986 of the Australia Acts12 by the United Kingdom and Australian
Parliaments.
In summary, for all practical purposes, there has been no ability to bring an
Australian case before the Judicial Committee since 1986. Thus, my generation at the
Bar and now on the bench has been the first in Australia to spend our time in practice
and in the exercise of judicial power without the experience of appearance before or
supervision by the Judicial Committee.
That is in marked contradistinction to the preceding generation and those before that.
A leader of the Bar in that preceding generation, later, in turn, Chief Justice of New
South Wales and Chief Justice of Australia, the Hon Murray Gleeson AC, has
observed that, for most of his time at the Bar, the Judicial Committee was “a real and
powerful presence”.13
12
13
Australia Act 1986 (UK) and Australia Act 1986 (Cth).
The Hon M Gleeson, then Chief Justice of Australia, The Privy Council – An Australian Perspective, Address to the
Anglo-Australasian Lawyers Society, the Commercial Bar Association and the Chancery Bar Association, London,
18 June 2008: http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_18jun08.pdf
(accessed, 8 January 2015). This was also the case for the preceding generations of Bar and bench in Australia. An
indication of this is offered in an article by Dr E G Coppel, QC, LLD, Appeals to the Judicial Committee – A Reply,
(1957) 1 Melb U L R 76. In that article, Dr Coppel records that, over the 50 years which preceded 1956, there were
157 reported appeals to the Judicial Committee from Australian courts. Of these, only eight dealt with federal
constitutional issues with 6 of those concerning s 92 of the Constitution. A few of the remaining 149, to my certain
7
What has been our experience since abolition?
I propose to give both an intra-mural answer to this question and to make some brief
observations about extra-mural effects. The latter draw on my experience when
practising on a case specific basis in Fiji prior to my appointment to the bench and on
my judicial service both in Australia and in Papua New Guinea.14
Intra-mural Effects
The final abolition of Australian appeals to the Judicial Committee was not long
preceded by the introduction of a requirement that appeals to the High Court from
subordinate intermediate appellate courts in the federal hierarchy and from State and
Territory Courts of Appeal or Full Courts lay only by special leave of the High Court.
According toa locally authoritative view, offered in the entry concerning the Judicial
Committee in the Oxford Companion to the High Court of Australia, the combination
of that final abolition and the introduction of the special leave requirement “had a
dramatic effect on the High Court’s own jurisprudence”. 15 The authors of that work
continue:
Many commentators have observed that the abolition did more than formally make the
High Court the final court of appeal for all Australian matters. It also contributed to the
evolution of a new judicial mindset. Liberated from correction by a higher court and
then from competition in relation to appeals from state courts, the High Court became
the true apex of the Australian hierarchy and undertook a new responsibility for
shaping the law for Australia.
An outward manifestation of that “new judicial mindset” may well have been the
discarding, in 1987, shortly after the retirement of the Rt Hon Sir Harry Gibbs as
Chief Justice of Australia and the assumption of that office by the Hon Sir Anthony
Mason, of the traditional Chancery judicial robe and bench wig worn throughout the
14
15
knowledge, concerned State constitutional issues, a few others either federal or state revenue law cases but the
overwhelming majority of the remainder were general law cases.
In 2011, at the request of the Papua New Guinea Government and with the permission of the Australian
Government, I came to hold an additional judicial commission a judge of the Supreme and National Courts of Papua
New Guinea.
Oxford HCA Companion, p 563.
8
English common law world and by the High Court since Federation. In its place, the
High Court adopted a robe which owed nothing to that heritage but resembled that
worn by justices of the United States Supreme Court.16
Outward form apart, substantive departures by the High Court from Privy Council
jurisprudence in particular and English common law in general were not long in
coming after final abolition. Constraints of time do not permit an exhaustive study of
this subject but the following examples demonstrate that the departure has not been
slight.17
Section 92 of the Australian Constitution materially provides that, “trade, commerce
and intercourse among the States … shall be absolutely free”. For many years after
Federation, the seemingly emphatic generality of this provision spawned much
litigation as individual States moved to protect, regulate or tax particular activities or
the Commonwealth government sought to nationalise them. In Commonwealth v
Bank of New South Wales (the Bank Nationalisation Case)18 and again in Hughes and
Vale Pty Ltd v New South Wales,19 the Judicial Committee, adopting a view as to the
meaning of s 92 favoured in the High Court by the Rt Hon Sir Owen Dixon, took an
expansive view of the meaning of the section as a guarantee of corporate or
individual enterprise. In 1988, in Cole v Whitfield,20 the High Court departed from
this view, holding that s 92 was infringed only by discriminatory laws of a
protectionist kind. That departure owed much to a detailed, historical analysis of the
debates at the constitutional conventions which preceded Federation and was not
without support in some early judgements of the High Court.21 Ever since Cole v
Whitfield and in marked contrast to the past, s 92 cases have been infrequent.
16
17
18
19
20
21
And, perhaps incongruously, by some Australian magistrates.
As to the departures in Australia from England in relation to the law of equity, see The Hon Sir A F Mason, The
Break with the Privy Council, in Centenary Essays for the High Court of Australia, P Cane Ed., Lexis Nexis
Butterworths, 2004, at p 73 et seq.
(1949) 79 CLR 497.
(1954) 93 CLR 1.
(1988) 165 CLR 360.
Notably, a dissenting judgment of Gavan Duffy J in W. & A. McArthur Ltd v. Queensland (1920) 28 CLR 530 at
567-568.
9
In relation to occupier’s liability, a view had developed in the High Court over the
1950’s, for which Commissioner for Railways v Cardy (Cardy)22 was the apogee, that
occupiers of land were subject to a general duty to take reasonable care in respect of
persons to whom injury may reasonably and probably be anticipated. This assimilated
the duty of care owed by occupiers of land to those coming on to that land with the
general duty of care in the law of negligence as described by Lord Atkin in Donoghue
v Stevenson.23In Commissioner for Railways v Quinlan,24which was taken directly to
the Judicial Committee from the Full Court of the NSW Supreme Court, this view
was described by the Judicial Committee as “in direct conflict with the established
rules of the common law”. The Judicial Committee determined the case according to
traditional conceptions of an occupier’s duty being governed by the status of the
entrant to his land – entrant as of right or under contract, invitee, licensee or
trespasser. In 1984, in Hackshaw v Shaw,25 Deane J nonetheless opined that the
occupier was subject to a general duty of care, a view accepted as correct by the High
Court in 1987 in Australian Safeway Stores v Zaluzna,26 thus confirming a
development earlier evident in Cardy.
In 1992, inMabo v Queensland (No 2) (Mabo),27 the High Court, by an emphatic
majority,28 held that the common law of Australia recognised native title. Arguably,
this decision also involved a departure from earlier Judicial Committee authority. In
Cooper v Stuart,29 the Judicial Committee had held that the then colony of New
South Wales was a settled or peaceably occupied territory. Thus, English law applied
from the moment of colonisation and English law did not recognise communal native
title. In the only case prior to Mabo in which a claim for native title was made,
Milirrpum v Nabalco Pty Ltd,(Milirrpum v Nabalco)30 it was this Judicial Committee
22
23
24
25
26
27
28
29
30
(1960) 104 CLR 274.
[1932] AC 562, at 580.
(1964) AC 1054.
(1984) 155 CLR 614.
(1987) 162 CLR 479.
(1992) 175 CLR 1.
6-1; Dawson J was the dissenting judge.
(1889) 14 App. Cas. 28.
(1971) 17 FLR 141, esp at 242-244.
10
authority and this reasoning which led Blackburn J to reject a claim for native title.
Milirrpum v Nabalco was never taken on appeal. For over two centuries, public and
private land transactions in Australia were conducted on this understanding of the
position, an understanding confirmed by Milirrpum v Nabalco.Milirrpum v Nabalco
was over-ruled in Mabo. Mabo was immediately and remains in Australia a
controversial decision. In its aftermath the Australian Parliament brought all native
title claims under statute31 but that statute’s definition of native title is predicated on
the correctness of Mabo. Reconciling native title claims made under that statute with
forms of land tenure granted before Australian common law was held to recognise
native title has been a source of continuing difficulty both for governments, the courts
and commerce and industry.
In Bolam v Friern Hospital Management Committee(Bolam),32 McNair J propounded
the test for professional negligence (in that case a medical practitioner) on the basis
that it was not to be measured by reference to the “highest expert skill” but rather the
practice of a responsible body of opinion in the profession. That conception of the
test was endorsed as correct by the Judicial Committee in 1967 inChin Keow v
Government of Malaysia.33 In 1992, in Rogers v Whitaker,34declining to follow
Bolam, the High Court held that a medical specialist was in breach of the duty of care
that he owed to a patient by failing to warn her of the small risk of total blindness
entailed in a procedure, even though that warning would not, in the circumstances,
have been given to that patient by other respected members of the profession. Since
then, a number of Australian State Parliaments have by legislation chosen to negate
the wider view adopted in Rogers v Whitaker and to restore the Bolam test for
professional negligence.35
31
32
33
34
35
Native Title Act 1993 (Cth).
[1957] 1 WLR 582 at 586.
[1967] 1 WLR 813.
(1992) 175 CLR 479.
For example, s 5O and s 5P, Civil Liability Act 2002 (NSW); ss 20-22, Civil Liability Act 2003 (Qld) and s 41,
Wrongs Act 1936 (SA).
11
In 1994, in Burnie Port Authority v General Jones Pty Ltd,36 the High Court, by
majority, held that the principle,notably confirmed by the House of Lords in Rylands
v Fletcher,37of strict liability for damage caused by the escape of dangerous
accumulations on one’s land should no longer be followed. Rather, so the majority
held, cases in which that principle had been applied were but examples of an
application of the general law of negligence. In 1913, in an Australian appeal to the
Judicial Committee, Rickards v John Inglis Lothian (Australia),38 the legal principle
which underpinned Rylands v Fletcher was described as “well known in English law
from a very early period”. Numerous decisions of the Judicial Committee, both
before and after Rickards v John Inglis Lothian (Australia), including two of the last
from Australia,39 have proceeded on the basis that Rylands v Fletcher was a correct
statement of principle.
More recently, in Australian Crime Commission v Stoddart,40 the High Court, by
majority,41 held that the common law did not recognise a privilege against spousal
incrimination. This puts Australia at odds with the position under English common
law, at least according to the understanding of that position in successive editions of
Halsbury’s Laws of England42 and successive editions of the leading English texts,
Phipson on Evidence43and Cross on Evidence.44 It also puts Australia at odds with the
36
37
38
39
40
41
42
43
(1994) 179 CLR 520.
(1868) LR 3 HL 330.
[1913] AC 263.
Abel Lemon & Company Pty. Ltd. v Baylin Pty. Ltd. (Queensland), Appeal No. 22 of 1985, [1985] UKPC 47 and
Montana Hotels Pty. Ltd. v Fasson Pty. Ltd. (Victoria), Appeal Nos. 24 and 39 of 1986, [1986] UKPC 55.
(2011) 244 CLR 554.
5-1. Heydon J was the dissenting judge.
As noted by Heydon J in his dissenting judgement in Australian Crime Commission vStoddart at [111] - [112] and
fn Lord Halsbury (ed), Halsbury’s Laws of England (Butterworths, 1910) vol 13, 574 [784]; (2 nd ed, 1934) vol 13,
729 [804]; (3rd ed, 1956) vol 15, 422 [760]; (4th ed, 1976) vol 17, 167-8[240); (5thed, 2009) vol 11, 735-6 [974].
Heydon J, at [112], noted that the reissue of the fourth edition (4 th ed, 1990) vol 11(2), 993 [1186] expressed doubt
regarding the existence of the privilege.
As noted by Heydon J in his dissenting judgement in Australian Crime Commission vStoddartat [106] - [109] and
fn: Sidney L Phipson, The Law of Evidence (Stevens and Haynes, 1892) 111; (2nd ed, 1898) 194; (3 rd ed, 1902)
181; (4th ed, 1907) 193; (5th ed, 1911) 198; (6th ed, 1921) 211; (7th ed, 1930) 205; (8 th ed, 1942) 198; (9th ed, 1952)
213; (10th ed, 1963) 264 [611]. The eleventh edition of Phipson did notcontain this passage because, as Heydon J
noted at [107], the Civil Evidence Act 1968 (UK) s 14(1)(b) ‘made the question of privilege at common law
academic, at least in civil cases’. This statement, as Heydon J also noted, was also included in Sidney L Phipson,
Manual of the Law of Evidence (Stevens and Haynes, 1908) 48; (3 rd ed,1921) 58; (4th ed, 1928) 87; (5th ed, 1935)
94-5; (6thed, 1943) 95; (7th ed, 1950) 81; (8th ed,1959) 81; (9th ed, 1966) 93; (10th ed, 1972) 99-100.
12
understanding of the United States Supreme Court as to the position at common
law.45
How these departures would have been received in the Judicial Committee, were a
right of appeal from the High Court still to have existed, is, necessarily, moot. If the
very last appeal from the High Court to the Judicial Committee, Port Jackson
Stevedoring Pty. Limited v Salmond and Spraggon (Australia) Pty. Limited (Port
Jackson Stevedoring)46 is any guide, local departures from earlier Judicial Committee
authority may not have been greeted with alacrity.
At issue in Port Jackson Stevedoring was the ability of stevedores unloading cargo
to have the benefit of exemption clauses in a bill of lading. In New Zealand Shipping
Co. Ltd. v. A. M.
Satterthwaite
& Co. Ltd. (The Eurymedon),47 the Judicial
Committee had held not only that that an exemption clause which had come to be
known as a “Himalaya clause” was capable of conferring on a person falling within
the description “servant or agent of the Carrier” defences and immunities conferred
on the carrier by the bill of lading as if such persons were parties to the contract
evidenced by the bill of lading but also that stevedores employed by a carrier may
and typically would come within it. In the High Court,48Barwick CJ, in dissent,
applied The Eurymedon so as to exempt the stevedore, Port Jackson Stevedoring Pty.
Limited, from liability. Of the majority in the High Court, and though the correctness
of the case was not argued, Stephen J and Murphy J held that The Eurymedon should
not be followed in Australia. The other members of the majority, Mason and Jacobs
JJ, accepted the correctness on the facts of The Eurymedon but distinguished it from
the facts of the case before them. In reversing the result in the High Court, the
44
45
46
47
48
As noted by Heydon J in his dissenting judgement in Australian Crime Commission v Stoddart at [113] - [118] and
fn: Cross on Evidence, (1958) at 229; 2nd ed (1963) at 231-232; 3rd ed (1967) at 229-230; 4th ed (1974) at 245; 5th ed
(1979) at 278.
Blau v United States 340 U.S. 332 (1951), in which a statement as to the existence of spousal privilege in Wigmore
on Evidence is cited with approval. The case concerned whether a husband could lawfully be compelled by a grand
jury, over objection as to the privilege, to disclose the address of his wife. The Supreme Court over-turned a
judgement in which it had been held that the husband could be compelled and was guilty of contempt for refusing to
answer.
[1981] 1 WLR 138.
[1975] AC 154.
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231.
13
Judicial Committee reaffirmed the correctness of The Eurymedon, expressly
approved the analysis offered by Barwick CJ in his dissent and added, with respect to
that decision and with particular reference to the joint judgement of Mason and
Jacobs JJ in the High Court:
Although, in each case, there will be room for evidence as to the precise relationship of
carrier and stevedore and as to the practice at the relevant port, the decision does not
support, and their Lordships would not encourage, a search for fine distinctions which
would diminish the general applicability, in the light of established commercial
practice, of the principle.
Extra-mural Effects
I witnessed in practice the benefits of the Judicial Committee as a central clearing
house and of the “common legal estate” to which Sir Robert Menzies referred in the
passage quoted above.
In 2004, when in practice at the Senior Bar, I was briefed to lead for the plaintiff in
the continuation, before what was by then known as the High Court of Fiji, of a land
acquisition case. The case had been commenced in 1968 following the acquisition by
the Suva City Council, on 25 September 1967, from Mr Mukta Ben and others (the
owners) of 20 acres of land on which the city council proposed and later came to
build a major power station. Even at the time, highest and best use of the land
concerned was predictably rather more than the agricultural pursuits to which it had
been put by the person from whom the owners had acquired it. The acquisition was
undertaken by compulsory acquisition under an ordinance which became, after
independence, the State Acquisition of Land Act (Fiji). The legislation followed a
form which was found in the United Kingdom49 and in many British or former British
colonies.
By the time I encountered it, the case had already been once to the Judicial
Committee on a separate legal issue as to the legality of the acquisition.50 What
49
50
Land Clauses Consolidation Act 1845 (UK).
Mukta Ben v Suva City Council [1980] 1 WLR 767.
14
remained was the question as to the assessment of compensation. The years which
passed thereafter had seen the retirement of the original trial judge, the death in office
during the course of a resumed trial of another judge, successive military coups in
1987 and a further coup in 2000, each of which contributed greatly to the delay in the
finalisation of the case. Such was the delay that the most significant issue in the case
was whether the generality of the word “compensation” empowered the court to
award compound interest in respect of the value of the land at the time of its
acquisition or whether simple interest only was all that could be awarded. Given the
lapse of time, the difference between the two figures was very substantial indeed.
The trial judge awarded compound interest but this decision was reversed by the Fiji
Court of Appeal. From there the case would certainly have proceeded again to the
Judicial Committee had such a right of appeal still existed. The result of the last of
the coups in 1987 and the related declaration of Fiji as a republic meant that this right
had ceased. In its place, Fiji had come to establish a final court of appeal known as
the Supreme Court of Fiji which, in the quality of its membership, was a worthy
successor to the Judicial Committee. Apart from the Chief Justice of Fiji, the
membership of the Supreme Court included highly experienced judges from Australia
and New Zealand. Though I settled the application for leave to appeal from the Court
of Appeal, I was appointed to the Federal Court shortly prior to the case being listed
for argument.
In the result, the Supreme Court granted special leave and allowed the appeal,
restoring the judgement of the trial judge. In so doing, the Supreme Court drew upon
precedent from English courts, from decisions of the Judicial Committee in
Canadian51 and Hong Kong52 appeals and from the High Court of Australia.53 As I
51
52
53
Inglewood Pulp and Paper Company Ltd v New Brunswick Electric Power Commission [1928] AC 492.
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111.
Marine Board of Launceston v Minister for the Navy (1945) 70 CLR 518.
15
observed last year in a paper delivered in New Zealand at a Pacific judges’
conference,54 of the High Court case relied upon by the Fiji Supreme Court:
The Australian High Court decision concerned was decided at a time when appeals
from that court lay to the Judicial Committee. The judgements delivered in that
Australian case are replete with references to many cases in which the language of the
model United Kingdom statute or analogues was considered either by the courts of that
country or, in respect of analogous replications elsewhere in British colonies or
Dominions, in the Judicial Committee. Included in the latter is an authority which
emanated from India.55
Mr Mukta Ben’s case was without precedent in Fiji but the advantage of Fiji’s
possession in relation to land acquisition of a common estate with a central clearing
house56 was that circumstances had elsewhere arisen which yielded by analogy a just
solution well-grounded in principle.
I later applied the Fiji Supreme Court’s judgement by analogy in the Federal Court in
deciding that a statutory jurisdiction to award compensation in respect of a breach by
a trustee of a superannuation fund extended to the awarding of compound interest.57
That I was able to do this was the result of coincidence derived from personal
knowledge of the Fijian decision for, unlike decisions of the Judicial Committee as a
“central clearing house”, found in the Appeal Cases or the Weekly Law Reports, it is
not customary in Australia either for counsel or judges to look for guidance to
unreported judgements of the Fiji Supreme Court or other individual Pacific final
courts of appeal, notwithstanding the quality of those benches.
Also in the paper which I delivered last year, I gave an example of how differences
which had emerged as between the criminal law of Australia and New Zealand as to
the propriety of representative charges had operated to prevent the extradition of an
54
55
56
57
“A Regional Final Court of Appeal for the South Pacific?”, Paper delivered at the 21st Pacific Judicial Conference,
Auckland New Zealand, Wednesday, 12 March 2014.
Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagaopatam [1939] AC 302.
Decisions of the Judicial Committee remained authoritative, even after the declaration of a republic.
Federal Commissioner of Taxation v Interhealth Energies Pty Ltd (No 2) (2012) 204 FCR 423.
16
alleged paedophile from Australia to New Zealand.58 In the past, when appeals from
each country lay to the Judicial Committee, it is very likely that these differences
would have been resolved, one way or the other, in the Judicial Committee such that
there was legal symmetry.
When Papua New Guinea became independent from Australia it adopted, by express
constitutional provision and subject to exceptions set out in the PNG Constitution,
“the principles and rules that formed, immediately before Independence Day, the
principles and rules of common law and equity in England”.59 At the time, it might
well have been thought that there would not by reason of this provision be any
particular difference in the general law as between Papua New Guinea and Australia.
In the paper which I delivered last year, I referred by way of example to a number of
differences which had since emerged in public law cases as between the United
Kingdom and Australia in which consequential divergence between the law of
Australia and Papua New Guinea was as yet latent.The same may be said of the
various departures by the High Court from Judicial Committee authority with respect
to the common law to which I have referred above.
The December 2014 sittings of the PNG Supreme Court brought with them an
example of a difference as between Papua New Guinea and Australia with respect to
the common law which was patent rather than latent.The case concerned was Torato
v PNG Home Finance Ltd.60
One issue raised in Torato v PNG Home Finance Ltdwas the nature of the duty which
falls on a mortgagee in exercising a power of sale. The Court noted that there were
conflicting lines of authority as between England and Australia with respect to the
nature of this duty. An English line of authority, of which Cuckmere Brick Co Ltd v
Mutual Finance Ltd (Cuckmere Brick)61 is an exemplar, holds that a mortgagee
exercising a power of sale is under a common law duty to take reasonable care to
58
59
60
61
Newman v New Zealand (2012) 206 FCR 1.
Constitution of the Independent State of Papua New Guinea, Schedule 2, Sch. 2.2.2.
PNG Supreme Court, SCA No 16 of 2012, Salika DCJ, Sawong and Logan JJ, 19 December 2014, not yet reported.
[1971] Ch 949.
17
ensure that the secured property is sold at market value.There is an Australian line of
cases for which Pendlebury v Colonial Mutual Life Insurance Ltd (Pendlebury)62is
the root authority, which holds that any liability of the mortgagee to the mortgagor in
relation to the price at which the secured property is sold is to be determined by
reference to equitable principles of good faith. More recent Australian cases have
acknowledged but not resolved for Australia the conflicting lines of authority. 63 The
case had been pleaded in negligence and the trial judge resolved the case by reference
to Cuckmere Brick, holding that the mortgagee had not been guilty of negligence. The
Court found it unnecessary to resolve whether Cuckmere Brick rather than
Pendlebury should be followed in Papua New Guinea as, even on the more benign
approach in Cuckmere Brick, the conclusion of the trial judge that there had been no
negligence was, on the evidence, correct.
A “central clearing house” such as the Judicial Committee would in time resolve this
type of difference, one way or the other.
The reasoning in Cuckmere Brick and Pendlebury hardly depended on cultural
differences as between the United Kingdom and Australia. With the notable
exception of Mabo, the same may be said of each of the other common law cases to
which I have referred above in which the High Court has come to differ from the
Judicial Committee. Even with Mabo, a departure on perceived localcultural
differences from an approach evident in a longstanding Judicial Committee decision
on a subject as pervasively important as land tenure might, with respect, have been
thought to be more a matter for a legislature than a court.
Cole v Whitfield is different. Sir Owen Dixon, whose view as to the meaning of s 92
came to be favoured by the Judicial Committee, had at least equal claim to Australian
judicial eminence to those who decided Cole v Whitfield. Even so, the outcome in
that case might be thought to exemplify Sir Owen’s ownobservation as Chief Justice
62
63
(1912) 13 CLR 676.
Forsyth v Blundell (1973) 125 CLR 477 and Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR
451.
18
in Whitehouse v. Queensland64 that “experience shows - and that experience was
anticipated when s.74 was enacted - that it is only those who dwell under a Federal
Constitution who can become adequately qualified to interpret and apply its
provisions”.
There is no doubt that, in Australia, no great controversy attended the final abolition
of appeals to the Judicial Committee. By that stage also, the United Kingdom had
ceased to be Australia’s major trading partner.65
Some jurisdictions continue to see value in a supra-national tribunal such as the
Judicial Committee, because of the confidence that engenders in international
investors. The Chief Justice of the Cook Islands, from whence appeals may still be
taken to the Judicial Committee, made just this point in the discussion which
followed the delivery of my paper in New Zealand last year. For this reason he
thought it unlikely that the Cook Islands would, in the foreseeable future, consign
ultimate appellate jurisdiction either to the New Zealand Supreme Court or even to a
regional final court of appeal.
Even though the Empire has long gone, London either remains, or at least vies with
New York to be, the world’s leading centre for international finance.66 Further,
because of time zone differences, it is the London financial market, rather than that of
New York, that is more convenient for doing business in Asia and other emerging
64
65
66
(1961) 104 CLR 635 at 637-638.
According a feature article in respect of Trade since 1900 in the Australian Bureau of Statistics 2001 Yearbook,
http://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/1301.0Feature%20Article532001:
“In 1900 the United Kingdom was Australia’s primary trading partner. Total trade with the UK was over five
times greater than the total trade with Australia's second largest trading partner, the United States of America.
With the exception of the USA, the other major trading partners were either European countries or members of
the British Empire, reflecting Australia’s close historical association with the UK in its developing trading
relationships.
By 1999-2000, the balance of Australia’s trading relationships had changed significantly. Our trade focus is now
firmly on the members of the Asia Pacific Economic Cooperation forum (APEC). Nine of Australia’s ten major
trading partners are members of APEC; the UK now ranks sixth.”
New York and London vie for crown of world’s top financial centre, Financial Times, 1 October 2014:
http://www.ft.com/cms/s/0/b388de4c-174b-11e4-87c0-00144feabdc0.html#axzz3OfPkgnD1 (Accessed, 13 January
2015).
19
markets.67 The common law which is applied in London is English, as understood by
the same judges who constitute the Judicial Committee.
In the days of Empire, the Judicial Committee, operating as a supra-national tribunal,
provided a common pinnacle of an umbrella under which trade and commerce could
be conducted within the Empire by reference to a common legal estate. English
common law remains relevant far beyond the United Kingdom, because of London’s
enduring pre-eminence as a centre for international finance.
More than a quarter of a century after the final demise of Australian appeals to the
Judicial Committee, the irony is that supra-national tribunals are an ever increasing
phenomenon in international trade and commerce.68 Some such tribunals are courts
constituted under treaty, for example, the European Court of Justice and, notably, in
this region, the Caribbean Court of Justice (CCJ). Others are arbitral, appointed ad
hoceither by the parties to international free trade agreements and bilateral investment
treaties or by non-state actors upon whom rights are conferred by such agreements.
This conferral of rights on non-state actors represents a modern development in
international law. In Ecuador v Occidental Exploration and Production Co,69 the
English Court of Appeal, referring to such agreements, observed:
That treaties may in modern international law give rise to direct rights in favour of
individuals is well established, particularly where the treaty provides a dispute
resolution mechanism capable of being operated by such individuals acting on their
own behalf and without their national state's involvement or even consent.
67
68
69
Ibid.
According to a register kept by the United Nations Conference on Trade and Development, as at 2014 there were
2816 bilateral investment treaties (of which 2114 were in force) and 345 other international investment treaties (of
which 274 were in force): http://investmentpolicyhub.unctad.org/IIA (Accessed, 14 January 2015).A related
specialist area of law is developing concerning arbitrations under such treaties. Witness the existence of specialist
conferences on the subject, for example, Juris Conferences LLC’s Ninth Annual Investment Treaty Arbitration
Conference, to be held in Washington DC on 26 February 2015. The promotional material for that conference states:
The Ninth Annual Juris Investment Treaty Arbitration Conference will address the complex issues raised by
investor-state arbitration, and in particular will address these issues in the context of disputes in the natural
resources sector. Over a quarter of all investor-state arbitrations commenced in 2013 alone arose out of disputes
related to oil, gas and mining projects. With the continued importance of natural resource exploitation to the
wealth of many states, and a resurgence of resource nationalism in parts of the world, it is not unexpected that
related disputes with foreign investors continue to figure prominently in investment treaty
arbitration.http://www.jurisconferences.com/2014/ninth-annual-investment-treaty-arbitration-conferencefebruary-26-2015/ (Accessed, 14 January 2015).
[2006] QB 432 at [19].
20
And further in that same case,70 the Court of Appeal approved the following
statement made by an international arbitral tribunal in Gas Natural SDG SA v
Argentine Republic:
The scheme of both the ICSID Convention and the bilateral investment treaties is that in
this circumstance, the foreign investor acquires rights under the convention and treaty,
including in particular the standing to initiate international arbitration.
The present Australian Chief Justice, the Hon R S French AC, offered a critique of
such arbitral tribunals in a paper recently delivered to the annual conference of
Australian Supreme and Federal Court judges. The Chief Justice observed of such
tribunals that, “They have general implications for national sovereignty, democratic
governance and the rule of law within domestic legal systems.”71
Yet, with respect, policy value judgements concerning those implications are for the
executive governments of nation states which choose to enter into such agreements,
not for the courts of that nation state. Treaty making is the province of the executive,
not the judicial branch of government. A treaty lawfully entered into by an executive
government of a democracy is not subversive of the rule of law. Where that treaty
consigns dispute resolution to an arbitral body rather than to the courts of one nation
state or the other that, too, is not subversive of the rule of law but it is subversive of
the relevance of that nation state’s courts and the finality of their judgements. When
one considers the nationally idiosyncratic Australian departures from what was once
the common legal estate of English common law, is it surprising that executive
governments, responding to the demands of modern international commerce, choose
to consign jurisdiction under such agreements to supra-national tribunals rather than
national courts?
The Australian experience is that the rise in nationalism which led ever increasingly
to the erosion of the common estate in the name of national judicial sovereignty is
70
71
[2006] QB 432 at [20], referring to Gas Natural SDG SA v Argentine Republic (ICSID, Case No ARB/03/10, 17
June 2005) at[34].
Chief Justice RS French, Investor-State Dispute Settlement — A Cut Above the Courts?, Supreme and Federal
Courts Judges' Conference, Darwin, 9 July 2014.
21
itself being overtaken by fresh demands created by international trade for supranational tribunals.
The criticisms made by French CJ of the existing position with respect to arbitrations
under bilateral or free trade agreements concerned the composition of their
membership, theirad hoc nature and the absence of institutional or even individual
independence of the tribunals. Where such agreements are struck between
Commonwealth countries, a thought which occurs is that a new role for a Judicial
Committee of suitably broadened judicial membership, or perhaps a modernised old
role,72 a role appropriately adapted to the free association of independent nations
which comprises the modern Commonwealth, would be to act as a supra-national
tribunal for the resolution of disputes arising under these agreements. This would be
an original rather than appellate jurisdiction but the use of judicial officers in
international arbitration is hardly unknown.73 Further, the quality of the work of the
Judicial Committee in such a jurisdiction might, in time, lead to its selection as a
dispute resolution forum even by non-Commonwealth member countries.
Obviously enough, that sort of evolution of the Judicial Committee would entail
considerable political value judgments by multiple national governments. In this
region, another supra-national alternative, the CCJ, has been established by treaty but
full accession to the jurisdiction it is capable of exercising has yet to occur. That
subject, too, is a matter for political value judgment. It is not my place as a serving
judge, especially one from another region, to advocate or to denigrate accession.
What I can say, based on the Australian experience, is that Sir Robert Menzies’
72
73
Dr. Charlotte Smith, An introduction to the Judicial Committee of the Privy Council, Privy Council Papers Online:
http://www.privycouncilpapers.org/judicial-committee-privy-council/(Accessed, 14 January 2015). Dr Smith
records that, before the 1833 reform which led to the formal constitution of the Judicial Committee, the Privy
Council offered a “simple model of government, which afforded the Crown a key role in directing and overseeing
the development of colonial government, administration and trade”. Government and administration are, obviously,
no longer appropriate functions but why not, within the modern Commonwealth, add to the residual appellate role of
the Judicial Committee, an original arbitral jurisdiction which drew upon a pool of serving and retired senior
Commonwealth judges so as to promote international trade by the quality and independence of trade arbitrations?
A notable example close in origin to the venue of this conference is offered by the Venezuela-Guyana Boundary
Arbitration conducted in 1899 by an arbitration panel which comprised two senior British judges, two judges of the
United States Supreme Court with a senior Russian judge as President. See: Joseph, Cedric L. (1970), “The
Venezuela-Guyana Boundary Arbitration of 1899: An Appraisal: Part I”, Caribbean Studies, Vol. 10, No. 2 (Jul.,
1970), pp. 56–89.
22
prediction in relation to abolition has come to pass. The alternative of a supranational court, acting as a common clearing house, is conducive to the preservation,
rather than the erosion, of a common legal estate. In the South Pacific, where we have
a smorgasbord of final appellate courts, there may well be lessons for us in the
alternative model offered by the CCJ.
© Commonwealth of Australia and J. A. Logan 2015, Moral Right of Author asserted. Nonexclusive publication licence granted to the University of the West Indies and to the
Commonwealth Secretariat.