Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62

ORDER Application refused.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 1 Dixon C.J., Williams, Webb, Fullagar and Kitto JJ.

By an order of this Court an appeal in the present case was allowed and a decision of the Supreme Court of New South Wales in favour of the respondent was reversed [1] . The respondent now applies to this Court to grant an "indemnity certificate" under the Suitors' Fund Act 1951 of the State of New South Wales. Section 3 of that Act establishes what is called a Suitors' Fund and makes provision for its direction control and management. Section 5 provides for the contribution to the fund of a proportion of the fees collected in every court and jurisdiction, scil. of New South Wales. Section 6 (1) provides that where an appeal against the decision of any court on a question of law succeeds the court determining the appeal may grant to the respondent thereto a certificate, which the section calls an indemnity certificate. Sub-section (2) then enacts that such a certificate shall entitle the respondent to be paid from the Suitors' Fund the costs which he may be ordered to pay, and pays, to the appellant and the costs of the appeal incurred by the respondent, the whole to not exceed £500. Sub-section (3) is as follows: "Where a court of appellate jurisdiction (in this subsection referred to as the "court of higher appellate jurisdiction") grants an indemnity certificate to the respondent to the appeal heard by it, an indemnity certificate granted previously to any person who is a party to such appeal by a court of lower appellate jurisdiction in the appeal or series of appeals which preceded the appeal to the court of higher appellate jurisdiction shall be vacated."

1. (1953) 88 C.L.R. 67.

The relevancy of this sub-section is only to the interpretation of the provisions of the Act, for no previous certificate was or could have been granted to the present respondent now applying to us for a certificate. Section 6 operates to impose upon the courts to which it applies a duty to hear and consider applications for indemnity certificates and to exercise a judicial discretion in granting or refusing them. It is apparent that this Court, the jurisdiction of which depends upon the Constitution of the Commonwealth and the laws validly made thereunder, could not in such a matter be affected by an exercise of the authority of the State legislature. It is therefore not a court to which s. 6 (1) of its own force can apply. Nor is there any reason to think that the term "Court" in s. 6 (1) was intended to include the High Court of Australia. No one could suppose that the general words of s. 5 were used with any idea that they would cover proceedings in the High Court and that no doubt is true of the word "Court" in s. 6 (1). But in any case, since s. 6 cannot apply to the High Court, it follows that, on ordinary principles, it should not be construed as intending to do so.

It has been argued that s. 6 is a law of the State of New South Wales which is made binding on this Court, as a Court exercising federal jurisdiction, by s. 79 of the Judiciary Act 1903-1950. Section 79 has, in our opinion, no bearing on the matter. The function which s. 6 imposes upon State courts forms a step in the machinery provided for indemnifying an unsuccessful litigant in respect of costs out of a fund set up and administered by the State. That is outside the scope of s. 79. The purpose of that section is to adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated.

Whether or not s. 79 applies to the appellate jurisdiction of this Court, it is no part of its purpose to pick up, so to speak, a provision of State law imposing on State courts such a function as that assigned to them by s. 6 (1) and convert it into a provision imposing a like function on federal courts. The circumstance that an application for a certificate of indemnity is made consequential upon the litigation does not alter the character of that proceeding and certainly is not enough to bring it within s. 79. It forms no part of the subject matter with which s. 79 deals.

The respondents' motion will be refused.