Whitehouse v Queensland [1961] HCA 55; (1961) 104 CLR 635 (7 September 1961)

HIGH COURT OF AUSTRALIA

Constitutional Law (Cth)

CATCHWORDS

HEARING

MOTION.

DECISION

The judgment of the COURT was delivered by DIXON C.J.:-

This is an application for a certificate under s. 74 of the Constitution in Dennis Hotels Pty. Ltd. v. Victoria [1960] HCA 10; (1960) 104 CLR 529 , their Lordships of the Privy Council granted special leave to appeal subject to a reservation as to their jurisidiction under s. 74. (at p637)

2. When the appeal came on for hearing their Lordships heard the objection covered by the reservation and decided that the two cases fell within s. 74 of the Constitution because they involved a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the respective States of Victoria and Queensland [1961] UKPCHCA 1; (1961) 3 WLR 268; (1961) 104 CLR 621 . (at p637)

3. In the Queensland case the plaintiff now applies for a certificate under s. 74 so that he may again go to the Privy Council. If a certificate were granted, it may be remarked, thereupon he would be entitled to appeal to the Council upon the question falling within s. 74 without further leave. (at p637)

4. Mr. Bennett on behalf of the plaintiff has argued the case very clearly and has put with force and summarily the grounds on which the plaintiff relies. (at p637)

5. Section 74 provides: "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 . . . unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council." It then provides: "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." (at p637)

6. There are various considerations which must govern the decision of this Court in exercising its power in a case which comes within s. 74. But no doubt the principle which lies at the root of s. 74 is one which must be kept in mind as possibly paramount. It has been expressed by this Court in judgments before, but it may be very shortly summarized by the statement 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. (at p638)

7. The present case is possibly exceptional; the matters which make it exceptional, as compared with the others before this Court involving matters inter se, have been laid hold of by Mr. Bennett in his argument. We have given full consideration to the matters the case involves but we think there is nothing to take the case out of that overriding principle and that it would not be a correct exercise of our very special discretion to allow this case to go before the Judicial Committee freed from the limitations that s. 74 imposes. (at p638)

8. The certificate will therefore be refused with costs. (at p638)

ORDER