Saunders v. Borthistle
1 CLR 379[1904] HCA 13
(Judgment by: Griffith CJ)
Saunders
v Borthistle
Judges:
Griffith CJBarton J
O'Connor J
Judgment date: 22 June 1904
Sydney
Judgment by:
Griffith CJ
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
GRIFFITH, C.J. The case has been very well and fully argued, and nothing would be gained by reserving our judgment.
This is an appeal from an order made by Pring, J., in Chambers upon an appeal by way of special case stated under s 101 of the Justices Act, 1902. [His Honour then stated the proceedings and the facts as reported above, and proceeded.]
On the matter coming before us, Sir Julian Salomons, for the respondent, contended that we had no power to entertain the appeal because the decision appealed from was not a judgment of the Supreme Court within the meaning of s 73 of the Constitution. That section gives the High Court jurisdiction to hear and determine appeals from all judgments decrees orders and sentences of the Supreme Court of any State, or of any other Court of any State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council. It was objected that the decision of Pring, J., under the circumstances, was not a judgment of the Supreme Court. It is necessary, therefore, to see what is the law under which he gave his decision. The Justices Act, 1902, Part V., contains provisions relating to appeals to the Supreme Court from the decisions of justices by way of special case. The provisions in those sections are analogous to those which have been in force for many years in England, and in most of the Australian States.
The appellant is entitled-
[His Honour read s 101].
The case is then sent to the Prothonotary of the Supreme Court. Then s 106 provides-[His Honour read the section.]
Then comes the section under which the objection is now raised before us, viz., s 107-[His Honour read the section].
Section 108 provides that "any justice or justices may enforce any conviction or order affirmed amended or made by the Supreme Court in the determination of any such case in the same manner as the justice or justices who originally decided the matter might have enforced his or their determination if there had been no appeal." So it is plain from the scheme of the Act that the right of appeal that is given is to the Supreme Court. After the Court has dealt with the appeal the justices are directed to enforce the order or award of the Supreme Court. The jurisdiction is therefore conferred upon the Supreme Court, but it is provided that the jurisdiction, so vested in it, may, subject to any rules and orders of the Court, be exercised by a Judge of the Court sitting in Chambers as well in vacation as in term. The question, therefore, is, what jurisdiction is he exercising in such a case. Now there is only one Supreme Court, though there are several Judges. Sometimes two or more Judges sit together as the Court, in many cases one Judge exercises the jurisdiction of the Court, but in every case the judgment of the Judge or Judges is in law the judgment of the Supreme Court. There may or may not be an appeal from the judgment, but the jurisdiction can only be exercised by the Court. Suppose the question arose in pleading afterwards, the judgment would be pleaded as a judgment of the Supreme Court. Could the plea be objected to on the ground that it was merely the decision of a Judge sitting in Chambers. It seems to me impossible to contend that the decision of a Judge exercising this jurisdiction is anything but a judgment of the Supreme Court within the meaning of s 73 of the Constitution. It is said that this is inconsistent with the decision in the case, In re Paul (1902), 2 S.R. (N.S.W.), 196, a petition for leave to appeal from the order of a Judge sitting in Chambers, in which it was held that there was no appeal to the Privy Council from such a decision. My opinion may or may not be reconcilable with that case. If it is not, I cannot help it. I am of opinion that the decision of Pring, J., was a judgment of the Supreme Court, and that therefore an appeal lies from it to the High Court, unless the amount involved is under the appealable amount, in which case there is an appeal only by special leave, under the conditions prescribed by the Constitution. It is objected, that if the Court holds that this was such a judgment, a great number of appeals will come to this Court from the decisions of Judges sitting in Chambers, but the answer to that objection is that an appeal would only lie by special leave where the amount was below PD300, and the Court could, if it thought fit, refuse to grant such leave. This Court has already refused special leave to appeal from the decision of a single Judge where there was a right of appeal to the Supreme Court. This was done in two cases in Melbourne and in one in Western Australia on that ground. This decision does not affect the question whether an appeal will lie to the Supreme Court or not from a decision of a Judge sitting in Chambers under these sections of the Justices Act, and it is not necessary to decide that point. That question depends upon other and quite different considerations, and it will be time enough to deal with it when it comes directly before us on appeal. For these reasons I am of opinion that this appeal is a matter which we have power to entertain.
As to the main point, the merits of the appeal, s 97 of the Pastures Protection Act, 1902, under which the complaint was laid, provides that: [His Honour read the section]. Pring, J., was of opinion that the sheep in question were "travelling stock" within the meaning of that section. The question depends upon the words of the interpretation clause in which definitions are given of the terms used in s 97. That clause, s 4, is to the following effect:
[His Honour read that portion of the section containing the definitions of "stock," "travelling stock" and "travelling sheep."]
There is no doubt that the sheep in question came within the meaning of the definition of "travelling sheep." The question then is whether they are "travelling stock" in the sense in which that term is used in s 97. It is to be observed that the section uses three of the terms defined in the interpretation section. It uses the terms "drover," "travelling stock" and "travelling sheep," and, in speaking of the same "travelling sheep," it uses the term "drover" as meaning the person in charge. If the respondent's contention is correct that any sheep "travelling," however short a distance, from the run on which they are ordinarily depastured, are "travelling stock," the term "travelling" will not bear the same sense in all the three instances in which it is used in the section. Again: on that construction, the word "drover" when used in connection with "travelling sheep" cannot be construed in accordance with the definition, for, by that, "drover" means any person in charge of any "travelling stock." i.e., stock travelling to a place upwards of forty miles from their place of depasture. Again: on that construction the term "travelling stock" where used in the second paragraph of the section as including the travelling sheep already mentioned, cannot, as to them, be used in the sense stated in the definition, because "travelling sheep" are not "travelling stock" unless they are travelling to a place upwards of forty miles distant. Again: the only person upon whom the duty is imposed is a "drover." If the respondent's contention is correct the section should read "any person in charge of any travelling sheep, and any person in charge of any travelling horses or cattle, shall be provided, etc" That is not the natural construction of the words. A "drover" is expressly defined to mean any person in charge of travelling stock, i.e., stock travelling 40 miles and upwards from the place whence they originally started. "Stock" may be either sheep, cattle, or horses. Reading the definition into s 97, it would run: "every person in charge of travelling stock, such stock being sheep," and "every person in charge of travelling stock, such stock being horses or cattle, shall be provided, etc" If not read in that way the word "drover" must mean "every person," which would be a somewhat remarkable construction in view of the definition. If, however, there were any difficulty in determining whether the section applied to all persons in charge of travelling sheep, great light would be thrown on the matter by the rule laid down by Lord Herschell, L.J., in Inglis v Robertson, [1898] A.C. 616 . In that case, speaking of the Factors' Act of 1889, which was divided into parts, he says, at p. 630:
"The Act is divided into parts. The first, headed `Preliminary,' consists of a definition clause. The last part, headed `Supplemental,' contains provisions as to the mode of transfer `for the purposes of this Act,' and certain savings.
... These headings are not, in my opinion, mere marginal notes, but the sections in the group to which they belong must be read in connection with them, and interpreted by the light of them. It appears to me that the legislature has clearly indicated the intention that the provisions of s 3 should not be treated as an enactment relating to all pledges of documents of title, but only to those effected by mercantile agents."
Applying that principle to the case before us we find that s 97 is one of a group of sections in Division IV. which deals with "travelling stock." The previous Division III. deals with "travelling sheep," and there is a marked distinction between the two. Prima facie this section relates only to "travelling stock" as defined in the interpretation clause. If there were any real doubt about the effect of the section, this ought to be sufficient to solve it. But there is another reason, which appears to me conclusive, for our holding that the construction which I have put upon the section is the true one. The Act of 1902 consolidated and amended a number of earlier Statutes, and the words in the later Act are an exact transcript of the previous Acts; these particular words coming from s 15 of the Act 41 Vict. No. 19, which was the subject of judicial interpretation in King v Cundy, 15 (N.S.W.) W.N. 158 . That interpretation having been put upon the words by the Supreme Court, the legislature thought fit to repeal and re-enact them in identical language. There is a well-known rule that, when an Act which has received authoritative interpretation by judicial decision is repealed and re-enacted, it should be assumed that the legislature intended the words adopted to bear the meaning which has been judicially put upon them.
I should be prepared for myself to rest my decision upon King v Cundy , even if I thought that it was wrongly decided. In the interpretation of State Acts which have been interpreted by State Courts, this Court ought, if possible, to follow the interpretation which those Courts have put upon them. I entirely agree with that decision, but even if I differed from it I think that we ought to follow it. Pring, J., before whom the matter does not seem to have been fully argued, thought that he was not bound by the decision in that case. It appears from reading his judgment that his attention was not drawn to two most important matters. He thought that the term "travelling stock" was not used in the section at all, and he was under the impression that the Statute interpreted in King v Cundy contained no definition of "travelling sheep." For these reasons I think that King v Cundy was rightly decided, and that Pring, J., was wrong, and that the appeal should be allowed.