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 CampusTrinidad

Tuesday, 21 January 2015________________________________________________________________________________

The Honourable Justice Logan RFDA 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.

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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 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;resCount=Default (Accessed, 8 January 2015)

3 Quick and Garran, The Annotated Constitution of the Australian Commonwealth, reprint of 1901 edition by Legal Books, Sydney, 1976 (Quick and Garran), p. 242.

4 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.

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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

conceptions of relations between Australia and the United Kingdom were very 5 Quick and Garran, pp 244-245.6 Colonial Sugar Refining Co v Commonwealth of Australia (1912) 15 CLR 182.

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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 Attorney-

General.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:

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)

7 Kirmani v Captain Cook Cruises Pty. Ltd [No. 2] (1985) 159 CLR 461.8 Menzies, Robert, Afternoon Light, some memories of men and events, Cassell Australia, 1967, p 324 (Menzies).

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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 text-

books, 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 Menzies, pp 324-325.10 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.

11 Privy Council (Appeals from the High Court) Act 1975 (Cth).

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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 Australia Act 1986 (UK) and Australia Act 1986 (Cth).13 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 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.

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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

English common law world and by the High Court since Federation. In its place, the

14 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.

15 Oxford HCA Companion, p 563.

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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 And, perhaps incongruously, by some Australian magistrates.17 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.

18 (1949) 79 CLR 497.19 (1954) 93 CLR 1.20 (1988) 165 CLR 360.21 Notably, a dissenting judgment of Gavan Duffy J in W. & A. McArthur Ltd v. Queensland (1920) 28 CLR 530 at

567-568.

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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 authority

and this reasoning which led Blackburn J to reject a claim for native title. Milirrpum 22 (1960) 104 CLR 274.23 [1932] AC 562, at 580.24 (1964) AC 1054.25 (1984) 155 CLR 614.26 (1987) 162 CLR 479.27 (1992) 175 CLR 1.28 6-1; Dawson J was the dissenting judge.29 (1889) 14 App. Cas. 28.30 (1971) 17 FLR 141, esp at 242-244.

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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

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

31 Native Title Act 1993 (Cth).32 [1957] 1 WLR 582 at 586.33 [1967] 1 WLR 813.34 (1992) 175 CLR 479.35 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).36 (1994) 179 CLR 520.

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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

37 (1868) LR 3 HL 330.38 [1913] AC 263.39 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 55.40 (2011) 244 CLR 554.41 5-1. Heydon J was the dissenting judge.42 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]; (2nd 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.

43 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; (8th 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.

44 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.

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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

Judicial Committee reaffirmed the correctness of The Eurymedon, expressly

approved the analysis offered by Barwick CJ in his dissent and added, with respect to 45 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.

46 [1981] 1 WLR 138. 47 [1975] AC 154.48 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231.

13

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

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

49 Land Clauses Consolidation Act 1845 (UK).50 Mukta Ben v Suva City Council [1980] 1 WLR 767.

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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

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

51 Inglewood Pulp and Paper Company Ltd v New Brunswick Electric Power Commission [1928] AC 492.52 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111.53 Marine Board of Launceston v Minister for the Navy (1945) 70 CLR 518.54 “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.

15

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

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, 55 Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagaopatam [1939] AC 302.56 Decisions of the Judicial Committee remained authoritative, even after the declaration of a republic.57 Federal Commissioner of Taxation v Interhealth Energies Pty Ltd (No 2) (2012) 204 FCR 423.58 Newman v New Zealand (2012) 206 FCR 1.

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“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

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 59 Constitution of the Independent State of Papua New Guinea, Schedule 2, Sch. 2.2.2.60 PNG Supreme Court, SCA No 16 of 2012, Salika DCJ, Sawong and Logan JJ, 19 December 2014, not yet reported.61 [1971] Ch 949. 62 (1912) 13 CLR 676.63 Forsyth v Blundell (1973) 125 CLR 477 and Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR

451.

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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

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”.

64 (1961) 104 CLR 635 at 637-638.

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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

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

65 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.”

66 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).

67 Ibid.

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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.

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:

68 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-conference-february-26-2015/ (Accessed, 14 January 2015).

69 [2006] QB 432 at [19].70 [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].

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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

itself being overtaken by fresh demands created by international trade for supra-

national 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

71 Chief Justice RS French, Investor-State Dispute Settlement — A Cut Above the Courts?, Supreme and Federal Courts Judges' Conference, Darwin, 9 July 2014.

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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’

prediction in relation to abolition has come to pass. The alternative of a supra-

national 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.72 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?

73 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.

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© Commonwealth of Australia and J. A. Logan 2015, Moral Right of Author asserted. Non-

exclusive publication licence granted to the University of the West Indies and to the

Commonwealth Secretariat.