Dalgarno v Hannah
Encyclopedia
Dalgarno v Hannah was the first case
ever to be decided by the High Court of Australia
. It involved the significant question of precisely when the High Court came into existence.
along Elizabeth Street in Sydney
, Australia
. A telephone wire that was being repaired overhead fell onto electric tram
wires and then contacted the cab, resulting in Hannah's injury. The cab was also damaged, and the horse was electrocuted
.
Hannah brought an action for negligence
in the Supreme Court of New South Wales
against the Commonwealth
, who were represented by a nominal defendant, the Deputy Postmaster-General of New South Wales
James Dalgarno. Hannah succeeded at trial and was awarded GBP 200 in damages
. Dalgarno appealed to a Full Court of the Supreme Court, but the appeal was rejected on 20 August 1903, five days before the Judiciary Act 1903
(which established the High Court) was given royal assent
.
On 15 October 1903 Dalgarno was granted special leave to appeal to the High Court. The case was heard in early November.
to hear the appeal. Hannah argued that since the original judgement was given before the Judiciary Act 1903 came into force, the court could not hear the appeal. Dalgarno argued that the right of appeal was not created by the Judiciary Act, but by the Constitution of Australia
, which provided that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia" (section 71). Thus, Dalgarno argued that the High Court actually came into existence on 1 January 1901, when the Constitution came into effect.
Hannah also argued that even if the High Court had the appropriate jurisdiction, the nature of the case did not merit the granting of special leave to appeal.
Section 73 of the Constitution provides that the High Court can hear appeals from any federal court or State supreme court subject to certain exceptions and regulations made by the Parliament
. The court pointed out that acts of Parliament could therefore only modify the exercise of rights to appeal (in terms of procedures and costs, for example),and not create new rights of appeal. In this way, the right to appeal had existed since the Constitution came into effect but could not be exercised until the Judiciary Act came into effect.
However, the court also raised the possibility that sections 71 and 73 of the Constitution were "words of futurity", and described illusory rights
, because the Court did not physically exist in 1901. They also noted a Privy Council
case decided earlier in 1903, Walker v Walker, in which the court said that a successful litigant is entitled to know when the litigation has come to an end.
spoke of the strong need for a court capable both of judicial review
of government and of interpreting the Constitution. In modern times also, it is widely accepted that the High Court draws its authority from the Constitution (in the vein of the Supreme Court of the United States
in Marbury v. Madison
).
However, the High Court celebrated its centenary in 2003, one hundred years after the Judiciary Act established the first bench. The formal question of when the High Court came into existence remains unresolved although, in any case, it is largely an academic question. It is unlikely that the issue will ever again be considered by the High Court.
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
ever to be decided by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. It involved the significant question of precisely when the High Court came into existence.
Background to the case
On 9 August 1901, Robert Hannah was injured while driving a hansom cabHansom cab
The hansom cab is a kind of horse-drawn cart designed and patented in 1834 by Joseph Hansom, an architect from York. The vehicle was developed and tested by Hansom in Hinckley, Leicestershire, England. Originally called the Hansom safety cab, it was designed to combine speed with safety, with a low...
along Elizabeth Street in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. A telephone wire that was being repaired overhead fell onto electric tram
Tram
A tram is a passenger rail vehicle which runs on tracks along public urban streets and also sometimes on separate rights of way. It may also run between cities and/or towns , and/or partially grade separated even in the cities...
wires and then contacted the cab, resulting in Hannah's injury. The cab was also damaged, and the horse was electrocuted
Electric shock
Electric Shock of a body with any source of electricity that causes a sufficient current through the skin, muscles or hair. Typically, the expression is used to denote an unwanted exposure to electricity, hence the effects are considered undesirable....
.
Hannah brought an action for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
in the Supreme Court of New South Wales
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
against the Commonwealth
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
, who were represented by a nominal defendant, the Deputy Postmaster-General of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
James Dalgarno. Hannah succeeded at trial and was awarded GBP 200 in damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
. Dalgarno appealed to a Full Court of the Supreme Court, but the appeal was rejected on 20 August 1903, five days before the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
(which established the High Court) was given royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
.
On 15 October 1903 Dalgarno was granted special leave to appeal to the High Court. The case was heard in early November.
The arguments
The main issue in the case was whether the High Court had the jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear the appeal. Hannah argued that since the original judgement was given before the Judiciary Act 1903 came into force, the court could not hear the appeal. Dalgarno argued that the right of appeal was not created by the Judiciary Act, but by the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, which provided that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia" (section 71). Thus, Dalgarno argued that the High Court actually came into existence on 1 January 1901, when the Constitution came into effect.
Hannah also argued that even if the High Court had the appropriate jurisdiction, the nature of the case did not merit the granting of special leave to appeal.
Section 73 of the Constitution provides that the High Court can hear appeals from any federal court or State supreme court subject to certain exceptions and regulations made by the Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
. The court pointed out that acts of Parliament could therefore only modify the exercise of rights to appeal (in terms of procedures and costs, for example),and not create new rights of appeal. In this way, the right to appeal had existed since the Constitution came into effect but could not be exercised until the Judiciary Act came into effect.
However, the court also raised the possibility that sections 71 and 73 of the Constitution were "words of futurity", and described illusory rights
Illusory promise
In contract law, an illusory promise is one that courts will not enforce. This is in contrast with a contract, which is a promise that courts will enforce. A promise may be illusory for a number of reasons...
, because the Court did not physically exist in 1901. They also noted a Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
case decided earlier in 1903, Walker v Walker, in which the court said that a successful litigant is entitled to know when the litigation has come to an end.
The decision
The Court decided that although it had certainly been brought into literal existence by the Judiciary Act, it potentially derived its authority from the Constitution. However, it chose not to resolve the question. Instead, the Court overturned the grant of leave to appeal on the grounds that leave should be granted only in cases involving a matter of public importance or a significant amount of money (defined in 1901 as GBP 300).Consequences
The important question of precisely when the High Court came into existence, and from where it derives its authority, has still not been resolved. When introducing the Judiciary Act into Parliament, Alfred DeakinAlfred Deakin
Alfred Deakin , Australian politician, was a leader of the movement for Australian federation and later the second Prime Minister of Australia. In the last quarter of the 19th century, Deakin was a major contributor to the establishment of liberal reforms in the colony of Victoria, including the...
spoke of the strong need for a court capable both of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of government and of interpreting the Constitution. In modern times also, it is widely accepted that the High Court draws its authority from the Constitution (in the vein of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
).
However, the High Court celebrated its centenary in 2003, one hundred years after the Judiciary Act established the first bench. The formal question of when the High Court came into existence remains unresolved although, in any case, it is largely an academic question. It is unlikely that the issue will ever again be considered by the High Court.