Dalgarno v Hannah

Dalgarno v Hannah
Dalgarno v Hannah
Court	High Court of Australia
Argued	6 & 10 November 1903
Decided	11 November 1903
Citation(s)	[1903] HCA 1, (1903) 1 CLR 1
Case history
Prior action(s)	Hannah v Dalgarno [1903] NSWStRp 80;; (1903) 3 SR (NSW) 494
Court membership
Judge(s) sitting	Griffith CJ, Barton & O'Connor JJ
Case opinions
	(3:0) The case was not of sufficient significance to grant special leave to appeal. per curiam

Last updated August 12, 2023

Dalgarno v Hannah^[1] was the first case to be decided by the High Court of Australia. It involved the significant questions of precisely when the High Court came into existence, for determining its jurisdiction, and the rules applicable to a grant of special leave to appeal. The Court chose not to address the question of when it came into existence and its jurisdiction; instead, withdrawing the grant of leave to appeal on the grounds that leave should be granted only in cases involving a matter of public importance or a significant amount of money (defined in 1901 as GBP 300).

Background

On 9 August 1901, Robert Hannah was injured while driving a hansom cab along Elizabeth Street, Sydney, Australia. A telephone wire that was being repaired overhead fell onto electric tram wires and then contacted the cab, resulting in Hannah's injury. The cab was also damaged, and the horse was electrocuted.

Hannah brought an action for negligence in the Supreme Court of New South Wales against the Commonwealth, who were represented by a nominal defendant, the Deputy Postmaster-General of New South Wales James Dalgarno. Hannah succeeded at trial and was awarded GBP 200 in damages. Dalgarno appealed to a Full Court of the Supreme Court, but the appeal was rejected on 20 August 1903, five days before the Judiciary Act 1903 (which established the High Court) was given royal assent.

On 15 October 1903 Dalgarno was granted special leave to appeal to the High Court. The case was heard in early November.

Arguments

The main issue in the case was whether the High Court had the jurisdiction to hear the appeal. Hannah argued that since the original judgement was given before the Judiciary Act 1903 came into force, the court could not hear the appeal. Dalgarno argued that the right of appeal was not created by the Judiciary Act, but by the Constitution of Australia, which provided that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia" (section 71). Thus, Dalgarno argued that the High Court actually came into existence on 1 January 1901, when the Constitution came into effect.

Hannah also argued that even if the High Court had the appropriate jurisdiction, the nature of the case did not merit the granting of special leave to appeal.

Section 73 of the Constitution provides that the High Court can hear appeals from any federal court or State supreme court subject to certain exceptions and regulations made by the Parliament. The court pointed out that acts of Parliament could therefore only modify the exercise of rights to appeal (in terms of procedures and costs, for example), and not create new rights of appeal. In this way, the right to appeal had existed since the Constitution came into effect but could not be exercised until the Judiciary Act came into effect.

However, the court also raised the possibility that sections 71 and 73 of the Constitution were "words of futurity", and described illusory rights, because the Court did not physically exist in 1901. They also noted a privy council case decided earlier in 1903, Walker v Walker,^[2] in which the court said that a successful litigant is entitled to know when the litigation has come to an end.

Decision

The Court decided that although it had certainly been brought into literal existence by the Judiciary Act, it potentially derived its authority from the Constitution. However, it chose not to resolve the question. Instead, the Court overturned the grant of leave to appeal on the grounds that leave should be granted only in cases involving a matter of public importance or a significant amount of money (defined in 1901 as GBP 300).

Consequences

The important question of precisely when the High Court came into existence, and from where it derives its authority, has still not been resolved. When introducing the Judiciary Act into Parliament, Alfred Deakin spoke of the strong need for a court capable both of judicial review of government and of interpreting the Constitution. In modern times also, it is widely accepted that the High Court draws its authority from the Constitution (in the vein of the Supreme Court of the United States in Marbury v. Madison).

However, the High Court celebrated its centenary in 2003, one hundred years after the Judiciary Act established the first bench. The formal question of when the High Court came into existence remains unresolved although, in any case, it is largely an academic question. It is unlikely that the issue will ever again be considered by the High Court.

Related Research Articles

The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August 1833 to hear appeals formerly heard by the King-in-Council, the Privy Council formerly acted as the court of last resort for the entire British Empire, other than for the United Kingdom itself.

Whilst the House of Lords of the United Kingdom is the upper chamber of Parliament and has government ministers, for many centuries it had a judicial function. It functioned as a court of first instance for the trials of peers and for impeachments, and as a court of last resort in the United Kingdom and prior, the Kingdom of Great Britain and the Kingdom of England.

In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus...".

The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution.

The Supreme Court of Norway is the highest court in the Norwegian judiciary. It was established in 1815 on the basis of section 88 in the Constitution of the Kingdom of Norway, which prescribed an independent judiciary. It is located in the capital Oslo. In addition to serving as the court of final appeal for civil and criminal cases, it can also rule whether the Cabinet has acted in accordance with Norwegian law and whether the Parliament has passed legislation consistent with the Constitution.

The Supreme Court (Filipino: Kataas-taasang Hukuman; colloquially referred to as the Korte Suprema is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on June 11, 1901 through the enactment of its Act No. 136, an Act which abolished the Real Audiencia de Manila, the predecessor of the Supreme Court.

The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primarily of the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. District Courts. It also includes a variety of other lesser federal tribunals.

The Supreme Court of the United Kingdom is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United Kingdom’s highest appellate court for these matters, it hears cases of the greatest public or constitutional importance affecting the whole population.

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is the Lord President, with their deputy being the Lord Justice Clerk, and judges of the Inner House are styled Senators of the College of Justice or Lords of Council and Session. Criminal appeals in Scotland are handled by the High Court of Justiciary sitting as the Court of Appeal.

<span class="mw-page-title-main">Court of Appeal of Singapore</span> Supreme appellate court of Singapore

The Court of Appeal of Singapore is the highest court in the judicial system of Singapore. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the chief justice, who is the president of the Court, and the judges of the Court of Appeal. The chief justice may ask judges of the High Court to sit as members of the Court of Appeal to hear particular cases. The seat of the Court of Appeal is the Supreme Court Building.

In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.

The courts of South Africa are the civil and criminal courts responsible for the administration of justice in South Africa. They apply the law of South Africa and are established under the Constitution of South Africa or under Acts of the Parliament of South Africa.

The judiciary of Jamaica is based on the judiciary of the United Kingdom. The courts are organized at four levels, with additional provision for appeal to the Judicial Committee of the Privy Council in London. The Court of Appeal is the highest appellate court. The Supreme Court has unlimited jurisdiction in all cases, and sits as the Circuit Court to try criminal cases. The Parish Court in each parish hears both criminal and civil cases, excluding grave offences. The Petty Sessions are held under Justices of the Peace, with power to hear minor crimes.

The Supreme Court of Nauru was the highest court in the judicial system of the Republic of Nauru till the establishment of the Nauruan Court of Appeal in 2018.

Law in the Republic of Vanuatu consists of a mixed system combining the legacy of English common law, French civil law and indigenous customary law. The Parliament of Vanuatu is the primary law-making body today, but pre-independence French and British statutes, English common law principles and indigenous custom all enjoy constitutional and judicial recognition to some extent.

United States v. More, 7 U.S. 159 (1805), was a United States Supreme Court case in which the Court held that it had no jurisdiction to hear appeals from criminal cases in the circuit courts by writs of error. Relying on the Exceptions Clause, More held that Congress's enumerated grants of appellate jurisdiction to the Court operated as an exercise of Congress's power to eliminate all other forms of appellate jurisdiction.

The Judiciary of Kenya is the system of courts that interprets and applies the law in Kenya. After the promulgation of the constitution of Kenya in 2010, the general public, through parliament, sought to reform the judiciary. Parliament passed the Magistrates and Judges Vetting Act of 2011. A major part of reforming the judiciary was the vetting of Magistrates and Judges in an attempt to weed out unsuitable ones. The Judicature Act has also been amended to raise the minimum number of Magistrates and Judges allowing more judicial officers to be hired. More magistrates and judges are needed to clear the backlog of cases that have caused great delay in the conclusion of cases and to staff new courts. New courts are needed to bring the courts closer to the people which is in line with devolution, a major principle written into the Constitution of 2010. New courts like the High Court opened in Garissa in November 2014 is a good example. In the past residents of North Eastern Kenya had to go all the way to Embu to access a High Court.

Deakin v Webb was one of a series of cases concerning whether the States could tax the income of a Commonwealth officer. The High Court of Australia overruled a decision of the Supreme Court of Victoria, holding that the States could not tax the income of a Commonwealth officer. This resulted in conflict with the Privy Council that was ultimately resolved by the passage of Commonwealth law in 1907 to permit the States to tax the income of a Commonwealth officer. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' Case.

Baxter v Commissioners of Taxation (NSW), and Flint v Webb, were the last of a series of cases concerning whether the States could tax the income of a Commonwealth officer which had resulted in conflict between the High Court and the Privy Council. The two cases were heard together, however two separate judgments were issued with Baxter v Commissioners of Taxation (NSW) addressing the substantive issues, and Flint v Webb addressing the applications for a certificate to appeal to the Privy Council. The judgement of Griffith CJ in Flint v Webb suggested two ways in which that conflict could be resolved. Both suggestions were adopted by the Commonwealth Parliament by legislation that permitted the States to tax the income of a Commonwealth officer, and gave the High Court exclusive appellate jurisdiction on such constitutional questions. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' case.

References

↑ Dalgarno v Hannah [1903] HCA 1 , (1903) 1 CLR 1.
↑ Robert Milroy Walker v Critchett Walker [1903] UKPC 10 , [1903] AC 170(13 February 1903), P.C. (on appeal from New South Wales)