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The Australian Judicial System: The Proposed New Federal Superior Court

Published online by Cambridge University Press:  24 January 2025

Garfield Barwick
Garfield Barwick*
Affiliation:
Commonwealth of Australia
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Abstract

Sir Garfield Barwick prepared this article some considerable time ago. It was in the hands of the publishers well before Sir Owen Dixon's retirement as Chief Justice of the High Court. The Review, including the article, was in course of printing when Sir Garfield's appointment as Chief Justice was announced on 23 April, 1964.

Type
Research Article
Information
Federal Law Review , Volume 1 , Issue 1 , March 1964 , pp. 1 - 23
Copyright
Copyright © 1964 The Australian National University

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References

1 Hobart, January 1963.

2 (1963) 36 Australian Law Journal 308.

3 Boilermaker's Case (1956) 94 C.L.R. 254, 268.

4 The Annotated Constitution of the Australian Commonwealth (1901) 804.

5 Vol. H. of R. 23, 2235-2236.

6 Collins v. Charles Marshall Pty Ltd (1955) 92 C.L.R. 529; Cockle v. Isaksen (1957)99 C.L.R. 155.

7 Ibid.

8 Australian Capital Territory Supreme Court Act 1933-1959, SSe 51, 52 (Cth).

Northern Territory Supreme Court Act 1961, ss. 46, 47 (Cth).

Papua and New Guinea Act 1949-1963, s. 64 (Cth).

Norfolk Island Act 1957-1963, s. 24 (Cth).

Cocos (Keeling) Islands Act 1955-1963, s. 16 (Cth); Supreme Court Ordinance 1955-1963, s. 14 (Cth).

Christmas Island Act 1958-1963, s. 14 (Cth).

9 Porter V. R. (1926) 37 C.L.R. 432. Boilermaker's Case (1957) 95 C

10 Infra p. 22-23.

11 Note: Items 6, 7 and 8 are matters heard in the original jurisdiction by a single justice. Some of the FullCourt matters in items 1 (b) and 5 (b) are also in original jurisdiction.

12 Supra p. 6.

13 Supra p. 7.

14 Supra p. 7.

15 See, eg, Cowen, , Federal Jurisdiction in Australia (1959) 68-73Google Scholar, submitting that the High Court may not lawfully invoke the doctrine of forum non conveniens. See also Cowen, ‘Diversity Jurisdiction: The Australian Experience’ (1956) 7 Res Judicatae 1, 26, 30-31.

16 La société du Gaz de Paris v. Société Anonyme de Navigation “ Les Armateurs Francais” [1926] S.C. (H.L.) 13 and cases there cited.

17 Logan v. Bank of Scotland (No.2) [1906] 1 K.B. 141 and cases there cited. See also Blair, ‘The Doctrine of Forum non conveniens in Anglo-American Law’ (1929) 29 Columbia Law Review 1.

18 [19261] S.C. (H.L.) 13.

19 Ibid. 23.

20 Ibid. 21.

21 6 Wheat. 264.

22 Ibid. 404.

23 Massachusetts v. Missouri and Others (1939) 308 U.S. 1. Compare Georgia v. Pennsylvania Railroad Company and Others (1944) 324 U.S. 439 where the court strongly affirmed its inherent right to decline jurisdiction in the suit, though not exercising that right in the instant case because not satisfied that there was anyone single alternative tribunal in which the numerous railroad defendants could be sued. See also Hart and Wechsler, The Federal Courts and the Federal System (1953) 258.

24 (1939) 308 U.S. 1.

25 Ibid. 18-20

26 Story, Commentaries on the Constitution of the United States (5th ed. 1891) paragraphs 1682, 1690-1692.

27 The Annotated Constitution of the Australian Commonwealth (1901) 804. See also the valuable discussion in Cowen Federal Jurisdiction in Australia (1959) 76-77.

28 Fausset v. Carroll (1917) 15 W.N. (N.S.W.) No. 12 Cover note (14 August 1917).

29 Reg. v. Langdon: ex parte Langdon (1953) 88 C.L.R. 158.

30 Ibid. 161, 163.

31 Ibid. 162-163.

32 (1953) 88 C.L.R. 158.

33 North Dakota v. Chicago & Northwestern Railway Company and Others (1921) 257 U.S. 485; Smeeton v. Attorney-General [1920] 1 Ch. 85.

34 (1953) 88 C.L.R. 158, 163.

35 The text of s. 45 is as follows

  1. (1)

    (1) Any matter which is at any time pending in the High Court, whether originally commenced in the High Court or not, may be remitted for trial to any Court of a State which has federal jurisdiction with regard to the subject-matter and the parties.

  2. (2)

    (2) The order remitting the matter may be made by the High Court, or a justice sitting in Chambers, on the application of any party to the matte.

36 Constitution, s. 77 (iii).

37 This is the view strongly put by Cowen, op. cit. 68-73, especially 71-73.

38 In re Barlow (1861) 30 L.J.Q.B. 271.

39 (1948) 76 C.L.R. 1.

40 Judiciary Act 1903-1960 s. 39 (2) (b) (Cth).

41 Bankruptcy Act 1924-1960 (Cth).

42 Infra p. 23.

43 So far as material s. 9 provides as follows 9.

—(1) If any party to proceedings before any such tribunal asis specified in paragraph 2, 3, 4 or 8, sub-paragraph (b) of paragraph 10, or paragraph 14, 18, 19 or 23 of the First Schedule to this Act is dissatisfied in point of law with a decision of the tribunal given on or after the appointed day he may, according as rules of court may provide, either appeal therefrom to the High Court or require the tribunal to state and sign a case for the opinion of the High Court….

44 The matter is fully discussed, for instance, in Friedmann and Benjafield, Principles of Australian Administrative Law (2nd ed. 1962) Ch. XII; H.W.R. Wade, Administrative Law (1961) Ch. VI.

45 Supra p. 7.

46 Does not include—

  1. (a)

    (a) Jurisdiction under Imperial Legislation e.g. Colonial Courts of Admiralty Act, 1890 (53 & 54 Vic. c. 27); or

  2. (b)

    (b) Jurisdiction under repealed Acts which may still operate in relation to matters pending at the date of repeal.