205

A.—s

" not of subordinate jurisdiction, but of co-ordinate jurisdiction. I cannot " assent to the argument that, because they are subject to appeal in other " cases, they are subject to appeal in this case also." And lower down he says : " 1 think it necessary to enter a protest against the view the Attorney- " General has taken on this point.' i will not venture to delay the Conference by reference to the varying opinions expressed by different members. There was conflict of opinion then that pointed to the conflict in the future. Perhaps I may be pardoned if 1 refer to the debates in the House of Lords, m which the late Lord Davey viewed this very question. He dealt with it in a very clear and emphatic fashion. At page 101 he is reported to have said : " Clause 74 " —that is the clause in question—" as it stands is a perfect " solecism in jurisprudence, and for this reason, that it creates two final " co-ordinate courts of appeal, neither of which is bound by the decision of "the other."' Omitting some sentences, he goes on: "The .Judicial Coni- " mittee, of course, is not bound by the decision ol the High Court, nor, as " I understand, is the High Court bound to follow the decisions of the "Judicial Committee in matters of this kind. They may, therefore, each " maintain their own opinion. I know that the answer that may be made "to me is that the Australian judges are men of such high principle and " good sense that they will find some way of either agreeing with the Judicial "Committee or of allowing the matter to be finally decided. They may; " but it lies in their discretion, and unless they do so you will have two co- " ordinate Supreme Courts of Appeal from the same courts on the same " class of subjects deciding in entirely different ways. That, I venture to " think, is a solecism in jurisprudence." Finally, the late Lord Chief Justice of England (Lord Russell) at page 109 is reported to have said : " The third "and last point to which I will call attention is this. While there is no " appeal according to this clause from the High Court except by leave of that "court, in the cases mentioned, there is an appeal from the decision of the " State Court to the Queen in Council, and thereupon arises the conflict to " which reference has been made—which court is to prevail '. Ido not seek "to dogmatise upon this matter, as to which there are obviously, from what " my noble and learned friend has said, different opinions; but I fail to see "anything in this Bill asserting directly or indirectly, that where the " decision of the Privy Council conflicts with the decision of the High Court, " the decision of the Privy Council is to prevail. I see nothing to that effeel "expressed certainly, and nothing I think to be implied. When I remind "your Lordships that the clause expressly says that the High Court shall "be the final judge in the matter unless it chooses to give leave, surely that " does lay a solid and reasonable foundation for the contention that it is "thereby, as regards matters so dealt with in the clause, created the final "court, and therefore co-ordinate with the other final court, namely, the " Privy Council. It seems to me that that is a difficulty which will very " likely arise." Lower down he says :" It seems to me that the conflict is " inevitable." I am, therefore, bound to consider the possibility that when the recent Judgment of the Judicial Committee of the Privy Council comes before the High Court of Australia, as I understand it will within the next two or three months, that out of this grave decision in the Income Tax case that very conflict of opinion may arise. Such a contingency, even if only referred to by way of illustration, suggests the advantage to be derived by the acceptance, so far as Australia is concerned, of the proposal embodied in tfiis Resolution. The anomaly to which Lord Davey called attention remains and is likely to remain a cause of serious inconvenience, perhaps of very serious loss and cost to the Commonwealth of Australia. That is, when in this

Seventh Day. 26 April 1907.

Imperial Court 01 APPEAL. (Mr. Deakin.)