High Court of Australia
Af Direcorof r. Sor, OF AUSTRALIA. 393
{HIGH COURT OF AUSTRALIA.]
COMMONWEALTH AND OTHERS . . APPELLANTS ; Derrenpants,
AND
G@LINGER & FERNAU LIMITED AND ) |, _ ANOTHER ? 7 A i' . _ § RESPONDENTS.
PLamntiFrs, 'THE COMMONWEALTH AND OTHERS . . APPELLANTS ; 4 Derenpants, AND 1006S ae al 3 '4 i ' ' . ResponDENT. PLAINTIFF,
ON APPEAL FROM THE SUPREME COURT OF VICTORIA.
titutional Law—High Court—Jurisdiction—Power of Commonwealth Parliament 4 ©, or A. —Appeal from Supreme Court of State exercising Federal jurisdiction—Taking 996, away right of appeal to Privy Council—Repugnancy—Removal of cause into High Court—Question as to limits inter se of constitutional powers of Common- MeLs0uRNE, wealth and those of State—The Constitution (63 & 64 Vict. c. 12), secs. 51, 74, Feb. 24-26; 71—Judiciary Act 1903-1920 (No. 6 of 1903—No. 38 of 1920), secs. 38a, 39, Mar. 1, 2, 6. 404—Privy Council Appeal Act 1844 (7 & 8 Vict. c. 69), sec. 1—Colonial Laws | ——
Validity Act 1865 (28 & 29 Vict. c. 63), secs. 2, 5—Supreme Court Act 1915 aes
Viet.) (No. 2733), secs. 30, 38, 232-234—Imperial Order in Council of 23rd . January 1911, ae Oe Gavan Duffy,
An action having been brought against the Commonwealth in the Supreme ee
Court of Victoria and judgment having been given for the Commonwealth, on Starke JJ. appeal to the Full Court of the Supreme Court by the plaintiff a contention
H. C. or A.
1926. ew THE Common- WEALTH v Krec- LINGER & Fernav Lr. AND
Barpsiery.
HIGH COURT iit
was raised by the Commonwealth that under sec. 39 (2) (a) of the Judiciary. Act 1903-1920 the only right of appeal was to the High Court. The Full Court, on the ground that sec. 39 (2) (a) was ultra vires, rejected the contention, _ and then heard the appeal and dismissed it. On the hearing of an application — by the plaintiff to the Full Court for leave to appeal to the Privy Council pursuant to the Imperial Order in Council of 23rd January 1911, the Full Court, accepting as binding on it the decision that sec. 39 (2) (a) was invalid, made an order granting the leave asked. On appeal to the High Court from the order granting leave,
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