Dalgarno V Hannah - The Arguments

The Arguments

The main issue in the case was whether the High Court had the jurisdiction 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.