Whitehouse v Queensland [1961] HCA 55

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Whitehouse v Queensland [1961] HCA 55

ORDER Application for a certificate under s. 74 of the Constitution refused with costs.

The judgment of the Court was delivered by Dixon C.J.:—

Sept. 7 Dixon C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

This is an application for a certificate under s. 74 of the Constitution in the case of Whitehouse v. Queensland [1] . In that case and in Dennis Hotels Pty. Ltd. v. Victoria [2] , their Lordships of the Privy Council granted special leave to appeal subject to a reservation as to their jurisdiction under s. 74.

1. (1960) 104 C.L.R. 609. 2. (1960) 104 C.L.R. 529.

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 [3] .

1. (1961) 3 W.L.R. 268; (1961) 104 C.L.R. 621.

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.

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.

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."