1st HIGH COURT (i921, (HIGH COURT OF AUSTRALIA.) 'PRESLEY : Apputcasr; Derenpant, q Gunicary °20) ) See an IsronManr, ON APPEAL FROM THE SUPREME COURT OF. THE NORTHERN TERRITORY. H.C. or A. Northern Territory—Supreme Court—Deputy Julge—Appointment—Validity— 121. Supreme Coart Ordinance 911-1919 (Northern Territory) (No. 9 of 19ll— = No. 13 of 1919), see. 3-9, 100, 100. Mexsoumse, Mor 11, 17, Se: 100 of the Supreme Court Ordinance 1911-1919 (Northern Terr) provides that "(1) Notwithstanding anything contained in this ordinanee Kgox C. the Governor-General may, by commission, appoint a person to be a Depity Geran Duty, Judge of the Supreme Court during such period and for sich pares at Sisrke33. are specified in the commission. (2) In relation to the purposes for which hie is appointed the Deputy Judge shall have all the powers snd may exert all the authorities which are vested in or may be exercised by the Judge of the Supreme Court." Held, by Knox C.J., Gavan Duffy and Rich JJ. (Higyins and Slarke 3) dissenting) that that section gives no power to appoint a Deputy Judge a time when there is no Judge of the Supreme Court. Aprticatiow for leave to appeal from the Supreme Court of the Northem Territory. On 9th and 10th August 1920 at Darwin, in the Norther Territory, before Gerald Hogan, a Special Magistrate of the Northem Territory, an information was heard whereby Edward Patrick Geraghty charged that Villiers Clarence Murray Presley unlawfully had in is possession certain beer upon which duty had not been paid. The OLR) OF AUSTRALIA. information was dismissed, and the informant appealed to the Supreme Court of the Northern Territory. The appeal came on {or hearing on 2nd November 1920 before the same Gerald Hogan, purporting to sit as a Deputy Judge of the Supreme Court, and he, on 8th November 1920, at the conclusion of the hearing, allowed the appeal and imposed a penalty upon the defendant. 'The defendant now, on notice to the Minister for Home and Territories, moved for leave to appeal to the High Court from that decision, one of the grounds of the proposed appeal being that Mr. Hogan had not been duly appointed to the position of Deputy Judge. It appeared that in the Commonwealth Gazette of 30th September 1920 there was published a notice that David John Davies Bevan, Esq., who was then the Judge of the Supreme Court, was removed from office as from 22nd September 1920 ; that thereafter no Judge of the Supreme Court had been appointed ; and that Mr. Hogan was, by commission dated 21st October 1920, appointed Deputy Judge for a term of three months from 15th October 1920 "for the purpose of dealing with any cases which may in accordance with law come before the Supreme Court." Sanderson, for the applicant. The word "deputy" ordinarily implies that there is an existing principal, and there is nothing in the Supreme Court Ordinance 1911-1919 which shows that it has not that implication in secs. 10n and 10c of that ordinance. See Stroud's Dictionary, sub " Deputy," citing from Termes de la Ley ; County Courts Act 1888 (51 & 52 Viet. ¢. 43), see. 21; Ex parte Corles ; In re Palmer (1); Hoey v. M'Farlane (2); Commonwealth Conciliation and Arbitration Act 1904-1920, sec. 14 (2a) [Ric J. referred to Shrewsbury's Case (3); Cruise's Digest (4th el.) vol. ut, p. 105.) Owen Dixon, for the Minister for Home and Territories and the tepondent. The Supreme Court Ordinance, by sec. 108, intended to authorize the appointment of a person to hold an independent office, viz., that of Deputy Judge, and not the appointment {l) 3 DeG, & J., 484; 28 LJ. Bky., (2) 4 CB, (N.S.), 718. . YG) 8 ep, ep. ie H.C. or A, 1921, Presuey Grnacuty. H.C. or A. aol. ~ PRESLEY Genacury. HIGH COURT of a person to exercise the power of an existing Judge of the Supreme Court while that Judge held office. The words " Judge" are used as a name for the person appointed to the inde ; pendent office. The word "deputy" is often used as indicating an independent office, and in the case of the Deputy Postmaster. General indicates a permanent official who holds his office notwith: standing that from time to time there may be no Postmaster-General (Post and Telegraph Act 1901, sec. 7). [Kxox C.J. referred to R. v. Loyd (1); R. v. Edye (2), To construe the ordinance so that the machinery of the Supreme Court should cease to work when there was no Judge of the Supreme Court would be to defeat the useful purposes of the ordinance, The proper remedy here is by prohibition, and not by appeal, Sanderson, in reply. Cur. ado, wilt, The following written judgments were delivered :— Ksox €.J., Gavan Durry anp Ricu JJ. Iv this case Mr, Sander son asked us for leave to appeal from an order made by Mr, Gerald Hogan, purporting to act as Deputy Judge of the Supreme Court of the Northern Territory, One of the grounds of the proposel appeal was that Mr. Hogan had not been duly appointed to the position of Deputy Judge, and, as we thought it inexpedient that this question should remain in suspense, we directed that notice of the motion should be served on the Minister of State for Home and Territories. In pursuance of such notice the Minister appeared before us by counsel, and the question of the validity of Mr. Hogan's appointment was fully argued. The Supreme Court Ordinance 1911-1919 provides as follows = ; "3, There shall be a Supreme Court of the Northern Territory, which Court shall be constituted in the manner provided by this ordi nance... . 6, TheSupreme Court shall be constituted by theJudge of the Northern Territory sitting as such Supreme Court. 1. The qualifications of the Judge of the Northern Territory shall be a follows : He must cither be or have been a practising barrister (2) 12. QB, 936 (1) (1906) 1.8, J OF AUSTRALIA. 157 sdisitor of the High Court or of the Supreme Court of a State or of H: ©. or A. the Supreme Court of the Northern Territory of not less than five 192! year' standing. 8. (1) The Judge of the Northem Territory shall he appointed by the Governor-General by commission, and. shall hold office for a period of five years, or such longer period as is specified in his commission, unless sooner removed by the Governor- $a General, on the ground of misbehaviour or incapacity. (2). The Judge of the Northern Territory, holding office at the commence- ment of this ordinance, shall be the Judge of the Northern Territory hile his commission remains in force, or until a Judge of the Northen Territory is appointed under this ordinance, 9, Where, by any law of the State of South Australia which is continued in force in the Northern Territory as a law of that Territory, any power or function is vested in any Judge of the Supreme Court of South Australia, that power or function shall, in relation to the Northern Territory, be vested in the Judge of the Northern Territory. 108, — (1) Notwithstanding anything contained in this ordinance the Governor-General may, by Deputy Judge of the Supreme Court during such period and for such purposes as are specified in the commission. (2) In relation to the purposes for which he is appointed the Deputy Judge shall have all the powers and may exercise all the authorities which are vested in or may be exercised by the Judge of the Supreme Court. 10c. The Deputy Judge shall, before entering upon the duties of his fice, take, before the Judge of the Supreme Court, an oath or affirmation in the form contained in section 8a of this ordinance, Provided that in taking an oath or affirmation in pursuance of this section the words 'Deputy Judge' shall be substituted for the word "Judge '." Mr. Hogan's appointment and the order appealed against were "made when there was no person holding the office of Judge of the Northem Territory," as the officer is called in sees. 6, 7 and 9, or "Judge of the Supreme Court," as he is called in secs. 105 and 10c. Tt might appear at first sight that the powers and authorities men- tioned in sec. 108 (2) are only those specifie powers and authorities Which are set out in other parts of the ordinance, and that, because fee, 6, if there be no Judge there can be no Supreme Court. But commission, appoint a person to be a H.C. or A. 1921, Presury Geracury. HIGH COURT (1921 we think that they must include capacity to constitute the Supreme Court under see. 6, because the Judge of the Northern Territory constitutes that Court: only when sitting as such Supreme Court, and it cannot be intended that a deputy should have jurisdiction only during the period when the Judge was actually sitting in Court, But, assuming that the deputy might exercise jurisdiction at a time when the Judge was not actually sitting, we have still to decide whether he can be appointed or act at a time when there is no Judge. The word "deputy" strictly means one having authority to act for or in place of another, and hence his authority must be as limited as that of his principal ; no act can be competent to him which would not also at the same time be competent to his principal, We recognize that words are sometimes carelessly and even inaceur- ately used in legislative enactments, and we proceed to inquire whether there is any indication in the ordinance that the word "deputy" should have any other than its strict meaning, Ses, 9 provides that the powers therein specified " shall, in relation to the Northem Territory, be vested in the Judge of the Northem Territory." This, we think, means: shall be vested on his appoint- ment and during his tenure of office. Sec. 10x (2) provides that in relation to the purposes for which he is appointed the Deputy Judge shall have all the powers and may exercise all the authorities which are vested in, or may be exercised by, the Judge of the Supreme Court. This, we thinl to the office of Judge, but such powers as in fact are vested in or may be exercised by an existing Judge. Sec. 10c provided that the Deputy Judge should take his oath of office before the Judge of the Supreme Court; so the Legislature evidently thought that there could be no deputy without an existing Judge. It is said that this inference can be no longer drawn because Ordinance No. 18 of 1918, by sec. 2, provides that the oath may thereafter be taken before the Minister of State for Home and Territories or some person appointed by the Minister in that behalf. But this amendment does not show that the Legislature contemplated the existence of a Deputy Judge when there was no Judge, but only that they recognized that in certain circumstances it might be inconvenient to require the personal attendance of the Deputy before the Judge. Ttis clear that i, means not such powers as are appropriate 2» CLR) OF AUSTRALIA, -jgavay from the Territory, or for any limited purpose or time in the Deputy may be required to act in the Territory when the Judge H.C. or A. oat. - one part of the Territory while the Judge is in another part of the parser 'titory. Some light is thrown on this necessity by Ordinance Guutyry Yo, 1 of 1918, which extends the time for making an application for ' prerogative writ until the expiration of fourteen days after the retum to Darwin of the Judge after absence from the Territory. Tt is unnecessary to consider what would be the consequences of the construction contended for by the Minister, but in view of the qualifications required in a Judge we think it highly improbable that the intention of the ordinance was that a person without any prescribed qualifications might be appointed for an unlimited period to constitute the Supreme Court of the Northern Territory. 'Asthe question has been fully argued before us, and we have arrived at a conclusion that Mr. Hogan's appointment is bad, it seems undesirable to put the informant to further expense, and we suggest that litigation in this Court should cease on the Minister consenting to pay the costs of the motion and on an undertaking being given that no steps will be taken to enforce the convietion, Hoos J. The question is as to the meaning of the power to appoint "'a Deputy Judge" in the Northern Territory Supreme Court Ordinance No. 6 of 1919. An order was made by Mr, Gerald Hogan, purporting to act as "Deputy Judge" of the Supreme Court of the Territory. This onder quashed an order made by a Special Magistrate, and convicted the defendant of an offence charged ; and the defendant seeks leave to appeal to this High Court under sec. 21 of the Supreme Court Ordinance 1911. 'The ground of the appeal is that under the Ordi- tance No, 6 of 1919 the appointment of Mr, Hogan as Deputy Judge isinvalid, inasmuch as at the date of the appointment and of the onder there was no existing " Judge " of the Supreme Court. The Judge was removed from office on 22nd September 1920; and Mr. Hogan was appointed by commission (for a fourth term) for three months, from 15th October 1920, "for the purpose of dealing with any cases which may in aceordance with law come before the a Biiny J, wich H.C. or A. 1921, Presuey Grnacury. 'Higgins J. HIGH COURT Supreme Court." The ordernow impugned was madeon 8th N ber 1920, It is urged that the Ordinance No. 6 does not aut the appointment of a " Deputy Judge" unless there be an exi Judge. It is purely a question of construction of the ordinances, Under see. 2 of the Ordinance No. 6 of 1919 (see. 10n of the prin cipal ordinance) "the Governor-General may by commission appoint a person to he a Deputy Judge of the Supreme Court such period and for such purposes as axe specified in the commission"; and he " shall have all the powers and may exercise all the authorities which are vested in or may be exercised by the Judge of the Supreme _ Court." That is to say, whatever powers are from time to time attached to the office of Judge within the period and the purposes specified in the commission may be exercised by any Deputy Julge during his term. if Apart from the use of the word 'deputy " in the phrase "Deputy Iudge," it is incontrovertible that the length of the period of appoint- . ment and the purpose of the appointment—the dealing with ay cases coming before the Supreme Court—are within the powers of — the Executive. Does the use of the word "deputy" invalve the conclusion that the Deputy Judge is to be a mere agent of an existing Judge, so that if there is no existing Judge there can be no deputy, and so that if the existing Judge die or resign the functions of the Supreme Court cannot be exereised ? Now, the word "deputy" is not technical ; much less is the expression used here—* Deputy Judge." According to the diction: — aries, a very common synonym for "deputy " is "substitute"; and, of course, B may be a substitute for A whether A isill orabroad or has died or been removed. It may be conceded that the title "deputy" where used by itself is often appropriately applied to an agent for an existing prineipal—an agent whose agency when his prineipal ceases ; but such agency is not part of thenecessiy connotation, and it is rarely implied except when the appointment is made by the principal, not (as here) by a superior authority. There is not the slightest indication that the ordinances, a8 stood at the time of the appointment, contemplated the meaning of the word "deputy." On the other hand, the conferred was to appoint " during such period and for such OF AUSTRALIA. daring such period as there is an existing Judge." 'There is no tation of the power to the case of illness or of absence ot of pressure of business. The period and the purposes are all left to the discretion of the Governor-General in Council. 'There ean be 10 @ priori presumption in favour of a limitation of the discretion ; {or the Governor-General makes the ordinance, is the donor as well "asthe donee of the power to'appoint. 'The words of the power are 'ot even to appoint a person " to be a deputy of the Judge." Tehas been pointed out in the argument that there may be a "Deputy Postmaster-General during a time when there is no Post- - mastet-General, In the Standard Dictioncry * deputy " is defined as person appointed to act as substitute for another. In Murray's Dictionary also " substitute " is treated as one of the synonyms for "deputy." In the Standard Dictionary " depute " means, amongst "other things, to "send with authority." In the authorized version "of the Scriptures the word "deputy " is actually used where there vas no existing principal: "There was then no king in Edom: a deputy was king" (1 Kings, xxii., 47). To say the least, it would be quite in accord with correct usage to call a stop-gap appointee, ho is to act if there is a vacancy in the office of Judge as well as when the Judge is ill or unable to overtake the business of the Court, a "Deputy Judge." To my mind, however, the matter is ~ concluded in favour of the brcader meaning by the fact that no limit whatever is placed by the ordinance on the period for which the | Deputy Judge is to act. 'The words used are not "during such | Petod within the Judge's tenure of office." 'The fact that the Deputy _Thgeis enabled, by the Ordinance No. 13 of 1919, to take his oath af ofice before the Minister for Home and Territories (or some Person appointed by him), instead of before the Judge, tends to favour rather than to repel the notion that the ordinances at the time of the appointment contemplated the case of there being no ulge to administer the oath. Bet there is still another aspect to be regarded—the object which 'ras to be attained by the ordinance. If the defendant's contention right, a Deputy Judge, even if appointed during the Judge's tenure 'office, would lose all his powers on the Judge's death or resignation You xxix, u are specified in the commission." It is not a power to appoint H.C. or A. Presiey Genacury, igsiaa 3. H.C. or A. 192i. Prestey Geracary. Higgins J. HIGH COURT or removal ; and, as there was only one Supreme Court Judge, Court would become paralysed. No one could exercise its functions If the words are equally susceptible of two meanings, itis our duty to accept that meaning which leads to a reasonable result (per Keating J. in Boon v. Howard (1)). This is what Lord Coke called the argumentum ab inconvenienti (per Bowen L.J. in Gard v, Commis. sioners of Sewers (2) ) Further, if we look to the origins of the Latin word " deputo" it has no connotation of agency. It had a meaning of destin, allo as in deputata sibi a naturd sedes. In the strict meaning of the word, historically examined, there is no suggestion of agency, but of destination, appointment. We have been referred to some cases; but they do not seem to be any guide to the construction of this ordinance. In Hoey ¥. McFarlane (3) the power to appoint a deputy was expressly limitel by the Act 9 & 10 Viet. ¢. 95, sec. 20, to the illness or unavoit absence of the Judge proper. Here the power to appoint the Judge is not so limited ; the power is not confined to any set of circumstances. In Ex parte Corles ; In re Palmer (4), also, the power to appoint in question was in the case of the " illness or unavoidable absence " of the official ; and the appointment was to be "during his illness or unavoidable absence." It followed necessarily that any step taken by the deputy after the official had died was void. I am of opinion, as to the effect of the ordinances, that the Governor-General has power to appoint a deputy to act in the vacaney of the office of Judge, a deputy to take up any Supreme Court cases that may arise during the vacancy as well as any eases which any existing Judge finds it impossible or inconvenient to take, Indeed, I cannot think of any one word which would more com veniently or appropriately be applied as a title to such an oficer than the word "deputy." T have to add that if the defendant's point be upheld, if the appointment is invalid, it follows that the order made by Mr. 'Hogan is not an order of the Supreme Court, and that this High Court therefore, has no power to grant leave to appeal under sec. 21 (I) the Supreme Court Ordinance. 1) LR. 9 CP., 277, at p. 308. (3) 4B. (NS), 718. {2} 28a Dy dso, ep 3 Sst Big at p 8 OF AUSTRALIA. "grange J. The whole question in this ease is whether, according the true construction of certain ordinances relating to the Northern tory, the appointment of Mr. Gerald Hogan as Deputy Judge 'an appointment to exercise the powers and authorities of an "oie oF the powers ancl authorities of a person. As my brother Higgins says, the word "deputy" is frequently 'sed as applying to an agent for an existing principal but such is 'ot its necessary connotation, It is not the connotation in which the word is used, in my opinion, in the Ordinance No. 6 of 1919. "Tus, nsec. 10n, the power is not to appoint the deputy of a person, Tt to appoint "a person to be a Deputy Judge of the Supreme "Court." Further, the tenure of the appointment is not limited by ' express reference to the tenure of office of the Judge, but is for such period as is specified in the commission. Again, in secs. 10¢ "sad 0p, reference is made to the duties of " his" (the Deputy's) "office," and the oath the Deputy is required to take is to seve in the office of Deputy Judge of the Northern Territory." "The fact that: the deputy is not required to have the same quali- "fications as the Judge, and was originally required to take the oath " ofoffice before the Judge of the Supreme Court, has, in my opinion, "little bearing upon the question at issue, _ Admittedly, the Governor-General in Council has power to create - the office of Judge or Deputy Judge with or without qualifications. Uk the Governor-General in Council has used the power unwisely, " theremedy is wholly political. A direction to take the oath before "given person postulates, of course, the existence of that person, : but Teannot see that it throws any light upon the nature of the 'fice or of the authority conferred upon the person taking the 'ath. Moreover, the argument based upon see. 100 of the Ordinance No. 6 of 1919 turns the other way in the present case ; for the Ordinance No. 13 of 1919, sec. 2, now allows the oath to be taken before a Minister of State or some person appointed by him. 'The only argument left is based upon the Ordinance No. 9 of 1911, e. 6, providing that the Supreme Court shall be constituted by 'the Judge of the Supreme Court sitting as such Supreme Court. It 'issaid that there could be no Court without " the Judge" existing. Tutit is clear, in my opinion, that the effect of the Ordinance No. H.Cor a. 164 HIGH COURT H.C. oF A. 6 of 1919, sec. 10c, is to allow the constitution of the Court by mg of the Deputy Judge, E The appointment of Mr. Geral Hogan was a lawful on, in my __ opinion, and leave to appeal should be refused. [The consent and undertaking mentioned above were given by the Minister for Home and Territories.] Solicitor for the applicant, N. W. Barratt, Darwin, by McCay Thwaites. Solicitor for the Minister and the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth. (HIGH COURT OF AUSTRALIA) - JAMES FENWICK AND COMPANY LIMITED — Appeviaxt THE FEDERAL COMMISSIONER OF TAXA- } J Resroxpest TION H.C. ov A. Income Tax—Assesement—Income—Source of income—Requisitoning of propeybs 12. Commonsealth—Compensation—Income Taz Assessment Act 1915-1018 (Na ~ 34 of 1915—No. 18 of 1918), secs. 3, 10—Defence Act 1909-1015 (No. 20 Sypwey, 1903—No, 3 of 1915), see. 67—Regulations under the Defence Act ree O27 (Statutory Rules 1915, No. 173). Reg, 627 of the Regulations under the Defence Act (Statutory Roles 195,80. 173) provides, by sub-reg. 1, that in time of war the Governor-General mi issue a general authority to the Minister of Defence authorizing him to iss 82 authority to such person as he thinks fit to requisition certain artis, isi vessels, for naval and military purposes ; by sub-reg. 2, that upon receipt of such an authority from the Minister the person to whom itis ised mF require the owner of such articles to deliver them up to him; an My