Southern Centre Of Theosophy Inc v South Australia [1979] HCA 59

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. Southern Centre Of Theosophy Inc v South Australia [1979] HCA 59

ORDER Action No. 14 of 1979 dismissed. The cause removed in matter no. 12 of 1979 remitted to the Supreme Court of South Australia to enable that Court to hear and determine the application for leave to appeal to the Judicial Committee. Order that the State of South Australia pay the costs of both proceedings in this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 22 Barwick C.J.

The Solicitor-General for South Australia advanced in these two matters, which were heard together, the proposition that the Order in Council of 15th February 1909, made under the provisions of the Judicial Committee Act, 1844 Imp., providing for appeals as of right from the courts of South Australia to Her Majesty in Council was (a) ultra vires the Act of 1844 because of the terms of part of its preamble, and (b) that, in any case, as the appeal to the Privy Council depended upon a continuance of the royal prerogative, with the enactment of the Commonwealth of Australia Constitution Act and the creation of the States of the Commonwealth, the Acts of 1833 and 1844 no longer operated thereafter with respect to the State of South Australia.

My brother Gibbs, in his reasons for judgment which I have had the advantage of reading, deals with these arguments in precise detail. I agree entirely with what he has written.

In China Ocean Shipping Co. v. South Australia [2] , I have dealt with an argument put by the then Solicitor-General for South Australia that, upon the proclamation of the Commonwealth of Australia, all legislative power of the Imperial Parliament with respect to the State of South Australia had lapsed and that no Imperial law continued to operate in South Australia after that proclamation. I found it impossible to accept that argument.