No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
Although the framers of the Commonwealth Constitution, steeped in the study of American federalism, found the United States Constitution a valuable model which they could copy or adapt to the requirements of the six federating Australian colonies, they deliberately departed from the judicial provisions of that model in two major respects: first by creating the High Court of Australia as a general court of appeal from the Supreme Courts of the States; and, secondly, by empowering the Parliament to invest State courts with jurisdiction in all matters which might be brought before the High Court in its original jurisdiction.
1 Dixon, “The Law and the Constitution” (1935) 51 Law Quarterly Review 590, 597.
2 S. 73 (ii) of the Constitution.
3 S. 77 (iii) of the Constitution.
4 Coates v. National Trustees Executors & Agency Co. Ltd (1956) 95 C.L.R. 494; Crooks National Stores Pty Ltd v. Collie (1957) 97 C.L.R. 581.
5 Smyth v. The Queen (1957) 98 C.L.R. 163; Director of Public Prosecutions v. Smith [1961] A.C. 290; Parker v. The Queen (1963) 111 C.L.R. 610.
6 Privy Council (Limitation of Appeals) Act 1968 (Cth).
7 The Queen v. Kirby; ex parte Boilermakers Society of Australia (1956) 94 C.L.R. 254, 268.
8 See references in note 20 infra.
9 Hart, & Wechsler, , The Federal Courts and the Federal System (1953)Google Scholar Chs 4, 5, 8; Bunn, , Jurisdiction and Practice of the Courts of the United States (5th ed. 1949)Google Scholar Chs I, II, VI, X.
10 (1968) C.P.D. 3144 (21 November 1968).
11 (1951-1952) 25 Australian Law Journal 381; (1952-1953) 26 Australian Law Journal 307.
12 “The Necessity for a New Federal Court”, (1962-1963) 36 Australian Law Journal 308.
13 “The Australian Judicial System: The Proposed New Federal Superior Court”, (1964-1965) 1 F.L.Rev. 1.
14 (1967-1968) 41 Australian Law Journal 336.
15 (1967) C.P.D. 2336 (18 November 1967); (1968), C.P.D. 2298 (24 October 1968) 3144 (21 November 1968); (1967-1968) 41 Australian Law Journal 336.
16 See the diverse views expressed at the Thirteenth Legal Convention by Messrs Byers and Toose, (1962-1963) 36 Australian Law Journal 308, 328, Mr B. Hall loc. cit. 324, Sir Kenneth Bailey loc. cit. 325, Mr R. S. Watson, loc. cit. 326-327, Mr E. G. Whitlam, loc. cit. 327, as well as by Sir Garfield Barwick, (1964-1965) 1 F.L. Rev. 1, and Mr N. H. Bowen, supra n. 15.
17 See discussion at Thirteenth Legal Convention, (1962-1963) 36 Australian Law Journal 320 et seq.; and Fourteenth Legal Convention (1967-1968) 41 Australian Law Journal 342 et seq.
18 Sir Kenneth Bailey (1962-1963) 36 Australian Law Journal 325-326.
19 (1964-1965) 1 F.L. Rev. 2.
20 The only critical and constructive comment, apart from the discussion at the Thirteenth and Fourteenth Legal Conventions, has come from Professor Sawer who, in an article in the (1964-1965) Vol VIII Journal of the Society of Public Teachers of Law 301, has drawn attention to some of the general considerations against the proposed Court. At the political level, there has apparently been no criticism and the leader of the Australian Labor Party—no doubt because of his party's centralist policies—has commended the proposal: see Whitlam, E. G., 1967 C.P.D. 2339 (18 May 1967)Google Scholar; (1959-1960) 33 Australian Law Journal 124. The absence of any critical comments reinforces Professor Sawer's disappointment that “neither the practising nor teaching professions seem to have thought it worthwhile to give these proposals the critical attention … they deserve”; it also demonstrates an ignorance of the problems which have been encountered in the United States of America.
21 Lane, , “The Commonwealth Superior Court” (1969) 43Google Scholar Australian Law Journal 148.
22 Cl. 14.
23 Cl. 19 (1).
24 Cl. 19 (2).
25 Cl. 29-33, 37.
26 Cl. 38.
27 Cl. 35.
28 Cl. 36.
29 (1967-1968) 41 Australian Law Journal 344.
30 Maitland, , Equity and the Forms of Action at Common Law (1910) 375Google Scholar.
31 Report of Royal Commission on the Constitution (1927) 99-111; Cowen, , Federal Jurisdiction in Australia (1959)Google Scholar.
32 “The Law and the Constitution” (1935) 51 Law Quarterly Review 590, 606.
33 Ibid, 606-607.
34 Minutes of Evidence, 776 et seq.
35 Davis, , The Government of the Australian States (1960) 28Google Scholar.
36 Judiciary Act 1903-1965 (Cth), SSe 38A, 39, 40A.
37 Deakin, , The Federal Story (1944)Google Scholar Chs. 21, 22; Quick, and Garran, , The Annotated Constitution of the Australian Commonwealth (1901) 748Google Scholar et seq.
38 Webb v. Outrim [1907] A.C. 81.
39 Deakin v. Webb (1904) 1 C.L.R. 585.
40 Baxter v. Commissioner of Taxation (N.S.W.) (1907) 4 C.L.R. 1087.
41 The Judicial System of the Commonwealth (1904) 699.
42 Dennis Hotels Pty Ltd v. Victoria (1961) 104 C.L.R. 621; Sawer, in Else-Mitchell, (Ed.) Essays on the Australian Constitution (2nd ed. 1961) 86Google Scholar et seq; Howard, , Australian Constitutional Law (1968) 172Google Scholar et seq.
43 Nelungaloo Pty Ltd v. The Commonwealth (1950) 81 C.L.R. 144; (1952) 85 C.L.R. 545; (1953) 88 C.L.R. 529.
44 Dennis Hotels Pty Ltd v. Victoria (1961) 104 C.L.R. 621.
45 Cf. Commonwealth v. Anderson (1960) 105 C.L.R. 303 where a case was stated by the N.S.W. Supreme Court for the opinion of the High Court.
46 99 et seq.
47 Report of New South Wales Law Reform Commission on Supreme Court Procedure (1969) 9, 12-27.
48 (1969) 43 Australian Law Journal 150.
48A Cf. Bluett v. Fadden (1956) 56 S.R. (N.S.W.) 254, 264.
49 Harlan, “Some Aspects of the Judicial Process in the Supreme Court of the United States” 33 Australian Law Journal 108.
50 Cowen, Op. cit. ix.
51 Ibid.
52 Sawer (1964-1965) 8 Journal of the Society of Public Teachers of Law 312.
53 Sir Garfield Barwick strongly opposed the vesting of divorce jurisdiction in a federal court: (1964-1965) 1 F.L.Rev. 3-4; but other advocates of the proposal regard this as desirable: see (1962-1963) 36 Australian Law Journal 320 et seq.; (1967-1968) 41 Australian Law Journal 342 et seq. The reasons for denying the court jurisdiction in divorce and criminal matters are stated briefly by MrBowen, N. H. in (1968) C.P.D. 3145-3146 (21 November 1968)Google Scholar.
54 Griffith C.J., Rich J., Dixon C.J., Fullagar, Williams, Webb, Taylor, Owen, Walsh JJ.
55 Professor Sawer's examination of the volume of cases suggested that one additional judge could cope with the original jurisdiction work; he also expressed the view, with which I should agree, that any appellate court is improved if its judges maintain continuous experience of trial work. (1964-1965) 8 Journal of the Society of Public Teachers of Law 314; see also Mr C. H. Bright's comments in (1962-1963) 36 Australian Law Journal 324 and Sir Victor Windeyer's observations, (1967-1968) 41 Australian Law Journal 344.
56 This was not the original proposal of Sir Garfield Barwick (see (1964-1965) 1 F.L.Rev. 5) but seems to have been adopted in part by Mr Bowen (1968) C.P.D. 3146 (21 November 1968).
57 (1968) C.P.D. 3145 (21 November 1968).
58 S.73 of the Constitution: Minister of State for the Army v. Parbury Henty and Co. Pty Ltd. (1946) 46 S.R. (N.S.W.) 7; Simons v. Gale (1958) 58 S.R. (N.S.W.) 273.
59 In illustration, of the appeals from State Supreme Courts reported or noted in Volumes 40, 41 and 42 of the Australian Law Journal, 77 were from a single judge of a State Supreme Court and 146 were from a State Supreme Court en banc. There is no reason why these figures covering three years should not be typical; they do not include appeals from courts of a Territory or from a single judge of the High Court; applications for leave or special leave (including those in criminal cases) have been included where the leave was refused and excluded where the leave was granted; most of these applications, however, were from decisions of a State Supreme Court en banc.
60 Musgrave v. McDonald (1905) 3 C.L.R. 132.
61 It is questionable whether the doctrine forum non conveniens has any application: see (1964-1965) 1 F.L.Rev. 10 and it is probable that an increased limit of amount involved would not effectively reduce the volume of these appeals.
62 Report of New South Wales Law Reform Commission on Supreme Court Bill 1969, cl. 85.
63 It has never been suggested, for example, that an appeal should lie from a single Judge of the High Court of Justice in England to the House of Lords.
64 This accords with the suggestions of Mr F. T. P. Burt made at the Thirteenth Law Convention, (1962-1963) 36 Australian Law Journal 323-324, and those of Professor Sawer, (1964-1965) 8 Journal of the Society of Public Teachers of Law 311-312.
65 For example, the Uniform Companies Acts, the Hire Purchase Acts, the Adoption of Children Acts.
66 M. H. Byers and P. B. Toose, (1962-1963) 36 Australian Law Journal 308, 313, criticised the investing of State Courts with federal jurisdiction on the basis of possible hostility or friendship between the Governments. See G. L. Hart's comments, loc. cit. 323.