swarb.co.uk - law index
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Constitutional - From: 1930 To: 1959
This page lists 52 cases, and was prepared on 20 May 2019.
Minister of Health v The King ex parte Yaffe; 1931 - [1931] AC 494
Vauxhall Estates Ltd v Liverpool Corporation; KBD 1932 - [1932] 1 KB 733
Great Northern Railway Co v Sunburst Oil and Refining Co [1932] 287 US 358
1932
Justice Cardozo
Constitutional
(US Supreme Court) The Constitution neither prohibits nor requires prospective overruling. The Federal Court, Cardoza J said, 'has no voice upon the subject.'
1 Citers
China Navigation Co Ltd v Attorney General [1932] 2 KB 197; [1932] All ER 626
1932
CA
Lawrence LJ
Constitutional, Armed Forces
The Plaintiffs, an English shipping company, carrying on business in Hong Kong, traded in both local and Chinese waters. Its trade consisted both of carrying cargo and passengers. The Chinese and neighbouring waters were infested by pirates who frequently attacked ships trading in those waters, both from within and without the ships, the attacks from within being by evil-disposed persons who came on board - whether at the port of Hong Kong or Chinese ports - ostensibly as ordinary and peaceable passengers but who, on opportunity overpowered the officers and crew and took possession of the ship and all valuables therein. For some time the Government of Hong Kong was prevailed upon by various ship owners, including the Plaintiffs, to provide and place naval and military guards on board. Subsequently, however, Government notffied ship owners that as from a specified date ship owners would be required to pay in full for all guards supplied. The Plaintiff instituted proceedings in England against the Attorney General of England as representative of the Crown, seeking declarations that the Crown had no authority to demand money for providing protection against piracy, the ship owners, as subjects of His Majesty, being entitled to require the Crown to provide the necessary protection without payment. Rowlatt, J, before whom the action first came, dismissed it as misconceived. Held: The Court of Appeal affirmed that decision. The Crown is under no legal duty to afford military protection to British subjects abroad. If, in the exercise of its discretion, the Crown decides to afford such protection, it may lawfully stipulate that it will do so only on the condition that the cost should be borne by those requiring such extraordinary protection.
The legal history relating to the relationship between servicemen and women and the Crown can be traced back over many centuries, and at least since the reign of Charles II, the government and command of military forces had been vested in the Crown by prerogative right at common law and by statute.
1 Citers
Davis v Shaughnessy; PC 1932 - [1932] AC 106
Attorney General for New South Wales v Trethowan; PC 31-May-1932 - [1932] UKPC 1; [1932] UKPC 39; [1932] AC 526; [1932] AC 275; (1930-1931) 44 CLR 394
Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220
1933
Evatt J
Commonwealth, Constitutional
The court was asked whether Australian estate duty could be levied on movables situated abroad. Held. When testing the validity of a law passed by the government of a dominion, the question was "whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned." This law was extra territorial.
1 Citers
Trustees Executors and Agency Co Ltd v Federal Comr of Taxation (1933) 49 CLR 220
1933
Evatt J
Constitutional
(High Court of Australia) The court considered the power to create laws for the colonies: 'The correct general principle is . . whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned . . The judgment of Lord Macmillan [in Croft v Dunphy [1933] AC 156] affirms the broad principle that the powers possessed are to be treated as analogous to those of 'a fully sovereign state', so long as they answer the description of laws for the peace, order, and good government of the constitutional unit in question . .'
1 Citers
Ellen Street Estates Limited v Minister for Health; CA 1934 - [1934] 1 KB 590; [1934] All ER Rep 385
Re Sigsworth: Bedford v Bedford [1935] Ch 89
1935
Denning J, Clauson J
Constitutional, Wills and Probate
The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the 1925 Act. Held: Clauson J said that the forfeiture rule applied: "The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim's will precludes him from claiming a benefit conferred on him, in a case of his victim's intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver's case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own."
A person cannot bring an action based on his own wrong. As to the doctrine of judicial precedent "we fill in the gaps."
Administration of Estates Act 1925
Rex v Graham-Campbell, Ex parte Herbert [1935] 1 KB 594
1935
Lord Hewart CJ, Avory, Swift JJ
Constitutional, Licensing
Mr A P Herbert had laid two informations at Bow Street Police Station for summonses against fifteen named Members of Parliament, who were members of the Kitchen Committee of the House of Commons and the manager of the Refreshment Department of the House, alleging the unlawful sale of alcohol without a licence contrary to the 1910 Act. The Chief Metropolitan Magistrate declined to exercise jurisdiction, holding that the Members of Parliament were not susceptible to the jurisdiction of the court because they were protected by the privileges of the House. Mr Herbert sought an order of mandamus. The Attorney General argued in reply:- "The House sits for long periods and arrangements have to be made for heating the House when the weather is cold and the provision of refreshment for the mind in the library and refreshment for the body in suitable places. The regulation of those matters is clearly within the area of the internal affairs of the House and connected with the affairs of House." Held: The request was rejected. Lord Hewart CJ accepted the AG's argument and upheld the magistrate's decision and the reasoning of the magistrate. Only as an afterthought did he express the view that the majority of the provisions of the 1910 Act were inapplicable to the House of Commons. Avory and Swift JJ agreed, albeit that Avory J devoted most of his judgment to the question of whether the Act on its true construction applied to the House of Commons.
Lord Hewart said: "the magistrate was entitled to say, on the materials before him, that in the matters complained of the House of Commons was acting collectively in a matter which fell within the area of the internal affairs of the House, and, that being so, any tribunal might well feel, on the authorities, an invincible reluctance to interfere."
Licensing (Consolidation) Act 1910
1 Citers
British Coal Corporation v The King; PC 1935 - [1935] AC 500; [1935] All ER Rep 139; [1935] UKPC 33
Gallagher v Lynn; PC 1936 - [1937] AC 863
Sammut v Strickland [1938] AC 678
1938
PC
Constitutional
Malta by itself had ceded and taken authority for themselves in the Napoleonic wars. Held: The action was possible and lawful.
1 Citers
Ladore v Bennett; PC 1939 - [1939] 3 All ER 98; [1939] AC 468; 108 LJPC 69
Liversidge v Sir John Anderson; HL 3-Nov-1941 - [1942] AC 206; [1941] UKHL 1; [1941] 3 All ER 338
Duncan v Cammell, Laird and Company Limited (Discovery); HL 27-Apr-1942 - [1942] AC 624; [1942] UKHL 3
Point of Ayr Collieries Ltd v Lloyd George; CA 1943 - [1943] 2 All ER 546
Carltona Ltd v Commissioners of Works; CA 1943 - [1943] 2 All ER 560
Young v The Bristol Aeroplane Co Ltd; CA 28-Jul-1944 - [1944] KB 718; 60 TLR 536; [1944] 2 All ER 293; (1945) 78 Ll L Rep 6; [1944] EWCA Civ 1
Cabell v Markham; 1945 - (1945) 148 F 2d 737
Royster v Cavey [1946] 2 All ER 642; [1947] KB 204
1946
CA
Scott, Buckhill LJJ
Constitutional, Personal Injury, Litigation Practice
The plaintiff sought damages after being injured on her way to work. The Crown nominated the superintendent of a factory in which the plaintiff was injured as its occupier in order to allow the claim which would otherwise have failed for Crown privilege. The court below had refused to allow this fiction. Held: The plaintiff's appeal failed. Crucial admissions on which the case had been conducted at first instance should not be accepted, because they were contrary to fact.
Scott LJ said: "As a matter of fact . . the defendant so named had nothing whatever to do with the accident; he was not the occupier of the premises; he had not been guilty of any negligence, nor of any breach of statutory duty under the Act. Those allegations, that he did occupy that position and was so guilty, were accepted by the defence to the extent of not raising the question of his personal position."
Buckhill LJ said: "The result is, in my view, that this court cannot pronounce judgment against a defendant when in truth and in fact he is not under any liability at all."
1 Cites
1 Citers
Wilson v Chatterton [1946] 1 KB 360
1946
CA
Scott LJ
Constitutional, Litigation Practice
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision "being inconsistent with general principles laid down by the House of Lords and with other decisions of this Court."
1 Cites
1 Citers
Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others [1946] AC 508; [1946] UKPC 1
30 Jul 1946
PC
Lord Thankerton, Lord du Parcq, Sir Madhavan Nair
Constitutional, Wills and Probate, Limitation, Commonwealth
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity appeared to be subsequently accepted. The committee could not reverse a finding of fact save in the case of a manifest blunder by the lower court, or where there were concurrent and contradictory findings of separate lower courts, or in exceptional cases. The court should be careful to respect the traditions and systems of the countries from which appeal was made. The appellant had been in possession of the estate for many years. However in Hindu law, her possession could not be adverse to that of her husband even though he might be presumed to be dead. Held: The Board will only in exceptional circumstances review evidence for a third time. Exceptional circumstances might include a miscarriage of justice or violation of a principle of law or procedure: "That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law."
1 Cites
1 Citers
[ Bailii ] - [ PC ]
Zabrovsky v The General Officer Commanding Palestine [1947] AC 246; [1946] UKPC 49; 177 LT 369; [1947] LJR 1053
4 Dec 1946
PC
Lord Wright, Lord Porter, Lord Uthwatt, Sir Madhavan Nair, Sir John Beaumont
Constitutional
Mr Zabrovsky's son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, Eritrea was "held" by the British under the control of a Chief Administrator. Proclamation No 54 issued by the Chief Administrator permitted detention without charge in Eritrea, and the order of the Eritrean Military Government for Eliezer's detention had been made pursuant to that Proclamation.
An application for habeas corpus was made in the Supreme Court of Palestine against the British Officer commanding Mandate Palestine and the police. That court, sitting as a High Court and exercising English common law rules, discharged a rule nisi on the basis that, although control could be established, the extant detention order had been issued by a state beyond the Supreme Court of Palestine's jurisdiction. Held: The detention was lawful.
"In the troublous times of war and in the chaotic post-war conditions the scope of legal and permissive interference with personal liberty has been extended and restraints have been legalised by the legislature which would not have been accepted as legitimate in normal times. Thus in England, in what are called the Reg 18B cases, Liversidge v Sir John Anderson . . the House of Lords upheld the legality of a detention of the applicants by the Executive without trial and also held that the Executive could not be compelled to give reasons for the detention . . the effect of the decisions is to vest a plenary discretion in the Executive, affecting the liberty of the subject and pro tanto to substitute the judgment of the court, based on ordinary principles of common law right, the discretion of the Executive acting arbitrarily in the sense that it cannot in substance be inquired into by the court."
The Board distinguished: "[O'Brien] was relied upon for two purposes (1) to support an argument that on the facts of the present case the Palestine Government could properly be ordered to produce the body, and (2), that the proper order was not to discharge the order nisi but to make an order nisi which would enable the court, without deciding the question whether the Palestine Government had control of Eliezer, to clear up any doubts there might be as to the facts. In their Lordships' view, however, O'Brien's case does not, when carefully considered, afford any help in this appeal. The central feature in that case was that there never was an effective legal order. The order relied on was made by the English Secretary of State for internment of O'Brien in the Irish Free State after the setting up of an Irish constitution and an Irish Executive. The Court of Appeal held that the order was illegal . . The Secretary of State thereupon produced the body of O'Brien, giving as their justification, the order of internment which the court had held to be bad; the court made the order absolute and O'Brien was released . . In the present case the Palestinian court has found itself unable to say that the detention was illegal. They have said that it was beyond their competence to decide on the illegality of the detention in Eritrea. Their Lordships, as they have indicated, agree with this view but offer no opinion as to the further suggestion of that court, that, if the petitioner wishes to question the validity of the order made in Eritrea, he must do so in the courts of Eritrea. The validity and effect of the Eritrean law and order may raise many difficult questions of constitutional or other law. The legality of acts done, or of detention enforced in, that country in pursuance or assumed pursuance of its law or orders is, however, clearly beyond the jurisdiction of the Palestine court and of this Board on appeal."
1 Cites
1 Citers
[ Bailii ]
Attorney General for Alberta v Attorney General for Canada; PC 1947 - [1947] AC 503; [1947] LJR 1392
Co-operative Committee on Japanese Canadians v Attorney General for Canada [1947] AC 87
1947
PC
Wright L
Constitutional
Orders in Council were made by the Governor in Canada under the authority of The War Measures Act. One authorised the Minister of Labour to make orders for the deportation to Japan of a specified group of persons aged 16 or over who were resident in Canada and who had made a request for repatriation. The Order also provided that the wife and children under 16 years of age of any person for whom the Minister made an order for deportation to Japan, might be included in such an order and deported with such a person. The effect was that a wife of a person within the specified groups could be returned without her consent even though she may have had no links by birth, race or nationality to Japan. Held: The appeal agaiinst the upholding of the orders failed. The statute was interpreted to authorise removal from Canada not merely of persons of Japanese origin who requested repatriation, but also of their wives and children under 16 who resisted their own removal.
Lord Wright summarised part of the argument for the appellants: "The order . . not only does not show that by reason of the existence of real or apprehended war it was thought necessary for the security, peace, order, defence or welfare of Canada to make provision for their deportation but, when considered in substance, shows that these matters were not taken into consideration." He asked whether there was: "any matter which justifies the judiciary in coming to the conclusion that the power was in fact exercised for an unauthorised purpose." He answered: "In their Lordships' opinion there is not. The first three sub-sections of section S.2 no doubt deal with the matter which primarily engaged the attention of the Governor in Council [i.e. the sub-sections dealing with the removal of the specified group] but it is not in their Lordships' view a proper inference from the terms of those sub-sections that the Governor in Council did not also deem it necessary or advisable for the security, defence, peace, order and welfare of Canada that the wives and children under 16 of deportees should, against their will, also be liable to deportation. The making of a Deportation Order as respects the husband or father might create a situation with which, with a view to forwarding this specified purpose, it was proper to deal. Beyond that it is not necessary to go."
1 Citers
Attorney-General for Ontario v Attorney-General for Canada [1947] AC 127
1947
PC
Viscount Jowitt
Commonwealth, Constitutional
Abolition of civil appeals from Canada. The Board, in referring to the Canadian Constitution said of the 1867 Act that: "To such an organic statute, the Canadian Constitution the flexible interpretation must be given that changing circumstances require."
Statute of Westminster 1931 2 83 - British North America Act 1867 91
1 Citers
Franklin v Minister of Town and Country Planning; HL 2-Jul-1947 - [1947] UKHL 3; [1948] AC 87; (1947) 176 LT 312; [1947] 2 All ER 289
Nokes v Doncaster Amalgamated Collieries Ltd; HL 1948 - [1940] AC 1014
Chenard and Company and Others v Joachim Arissol (Seychelles) [1949] AC 127; [1948] UKPC 88
30 Nov 1948
PC
Lord Reid
Commonwealth, Constitutional
(Seychelles) 'A power to make ordinances for the peace, order and good government of a colony . . has been held "to authorize the utmost discretion of enactment for the attainment of the objects pointed to," and a court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government of the colony.'
[ Bailii ]
Lewisham Borough Council v Roberts; CA 1949 - [1949] 2 KB 608
Jacobs v London County Council; HL 1950 - [1950] AC 361
Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd [1951] 1 KB 1
1951
CA
Tucker, Asquith, Jenkins LJJ
Litigation Practice, Constitutional
Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the passing of the Act, "so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof". The term "commencement" was defined by section 36 as meaning "the time at which the Act comes into operation". Held: The power conferred by section 37 was not confined to bringing the Act "into operation" in the sense of bringing it into legal force, but extended to taking measures which would enable the Act to operate in practice. Section 37 gave power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation.
Interpretation Act 1889 37
1 Citers
National Assistance Board v Wilkinson [1952] 2 QB 648
1952
Devlin J
Constitutional
It is a fundamental principle of statutory construction that Parliament should not be taken as effecting a fundamental alteration in the general law, by (say) abolishing a long established defence, unless it made this expressly clear in the statutory wording.
1 Citers
Inland Revenue Commissioners v Dowdall, O'Mahoney and Co Ltd; HL 1952 - [1952] AC 401
Minister of the Interior v Harris 1952 (4) SA 769
1952
Centlivres CJ
Commonwealth, Constitutional
(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting rights of Cape Coloured voters could only be removed by a two-thirds majority of both Houses of Parliament sitting together. In furtherance of its racist ideology the Nationalist government decided to abolish this right. Its attempt to do so was contested. In Harris v Minister of the Interior 1952 (2) 428 (AD) the issue came before the Appellate Division, as it was then known. The court had in mind (at 431C) the clear distinction between what Parliament may do by legislation and what the constituent elements must do to legislate. Ruling unanimously that the government's attempt to by-pass the entrenched provisions was invalid, Centlivres CJ speaking for the Appellate Division observed: "A State can be unquestionably sovereign although it has no legislature which is completely sovereign. As Bryce points out in his Studies in History and Jurisprudence (1901 ed, vol II, p 53) legal sovereignty may be divided between two authorities. In the case of the Union, legal sovereignty is or may be divided between Parliament as ordinarily constituted and Parliament as constituted under section 63 and the proviso to section 152. Such a division of legislative powers is no derogation from the sovereignty of the Union and the mere fact that that division was enacted in a British Statute (viz, the South Africa Act) which is still in force in the Union cannot affect the question in issue."
1 Citers
Usher v Barlow [1952] Ch 255; (1952) 69 RPC 27; [1952] Ch 255; (1952) 69 RPC 27
1952
CA
Lord Eversed MR, Jenkins, Morris LJJ
Intellectual Property, Litigation Practice, Constitutional
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation because the Comptroller of the Patents Office would not register wall plaques as designs under the Patents and Designs Acts 1907 to 1919. The 1949 Act came into effect on Jan 1 1950. The Board of Trade made rules under that Act which came into operation on 2 January 1950. By rule 26 wall plaques were excluded from registration as designs under the Act. The rules were made pursuant to section 1(4) of the Act which empowered the Board of Trade to make rules excluding from registration, designs for articles which were literary or artistic in character. Held: The judgment at first instance was upheld.
The reference in s. 22 of the 1911 Copyright Act to the Patents and Designs Acts 1907 to 1919 was ambulatory, and, after the coming into operation of the 1949 Act, to be read as a reference to the 1949 Act. It followed that copyright in the wall plaque subsisted because the 1949 Act and the rules made thereunder prevented the registration of the plaque as a design. It was not then capable of registration.
Lord Evershed MR said that section 37 of the 1889 Act extended to something more than that which was requisite to enable the Act to come into operation at all: it covered such steps as would be required to enable the Act to operate effectively.
Jenkins LJ, with whose judgment Morris LJ agreed, observed that "operation" was used in section 37 in two different senses, namely the sense in which it appeared in the definition of "commencement" and the sense of "effective operation". The section should be construed as extending to whatever was necessary or expedient for the purpose of bringing the Act into effective operation, in the second sense, at the time when it came into operation, in the first sense.
Copyright Act 1911 - Patents and Designs Act 1907 22 - Interpretation Act 1889 - Registered Designs Act 1949
1 Citers
The Attorney General of Canada v Hallet and Carey Limited and Another; PC 20-May-1952 - [1952] UKPC 13; [1952] AC 427; [1952] 1 TLR 1408
MacCormick v Lord Advocate 1953 SC 396; [1953] ScotCS CSIH - 2; 1953 SC 396; 1953 SLT 25
30 Jul 1953
SCS
Lord President Cooper
Scotland, Constitutional
LP Cooper reserved his opinion on the question whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law which Parliament is not free to alter.
Lord President Cooper said: "I cannot see how we could admit the title and interest of the present petitioners to raise the point in issue before the Court of Session without conceding a similar right to almost any opponent of almost any political action to which public opposition has arisen."
Act of Union of 1707
1 Citers
[ Bailii ]
Minquiers and Ecrehos (France v United Kingdom) (1951-1953) [1953] ICJ Rep 47
17 Nov 1953
ICJ
International, Constitutional
The Treaty of Calais of 1360 contained a clause confirming that the King of England shall have and hold all the islands which he "now holds"
1 Citers
[ ICJ ]
Regina v Sheer Metalcraft Ltd; 1954 - [1954] QB 586; [1954] 1 All ER 542; [1954] 1 QB 586; [1954] 2 WLR 777; (1954) 118 JP 190; (1954) 98 Sol Jo 253
The AG for Ontario and Others v Israel Winner [1954] UKPC 8; [1954] 3 All ER 177; [1954] AC 541; [1954] 2 WLR 418
22 Feb 1954
PC
Constitutional
[ Bailii ]
Giorgio Borg Olivier and Others v John Coleiro [1954] UKPC 18; [1966] 3 WLR 310; [1966] 2 All ER 459; [1954] 1 WLR 845; [1967] 1 AC 115
11 May 1954
PC
Constitutional
(Malta)
[ Bailii ]
Kirkness v John Hudson and Co Ltd [1955] AC 696; [1955] 2 WLR 1135; [1955] 2 All ER 345, HL(E ); [1955] UKHL TC - 36 - 28
1955
HL
Viscount Simonds
Constitutional
Viscount Simonds said: "the beliefs or assumptions of those who frame Acts of Parliament cannot make the law". While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent litigation was the same as the earlier Act.
1 Cites
1 Citers
[ Bailii ]
Glasgow Corporation v Central Land Board; HL 12-Dec-1955 - [1955] UKHL 7; 1956 SLT 41; [1956] JPL 442; 1956 SC (HL) 1
Nyali Ltd v Attorney-General; CA 1956 - [1956] 1 QB 1
Smith (Kathleen Rose) v East Elloe Rural District Council; HL 26-Mar-1956 - [1956] AC 736; [1956] 1 All ER 855; [1956] UKHL 2
Attorney General of Australia v The Queen and the Boilermakers' Society of Australia; Kirby v The Queen and Boilermakers' Society of Australia [1957] 2 All ER 45; [1957] AC 288; [1957] 2 WLR 607
1957
PC
Viscount Simonds
Constitutional
When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if parliament established new bodies exercising similar functions but with different names and less protection of the independence of the officers carrying out judicial type activities.
1 Citers
Maxwell v Murphy (1957) 96 CLR 261
1957
Sir Owen Dixon CJ
Constitutional, Commonwealth
Sir Owen Dixon CJ said: "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events." and "A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights."
1 Citers
Behrens v Bartram Mill Circus 1957] 2 QB 1
1957
QBD
Devlin J
Litigation Practice, Constitutional
Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.
1 Citers
Pyx Granite Ltd v Ministry of Housing and Local Government [1960] AC 260; [1959] 3 All ER 1
1959
HL
Viscount Simonds, Lord Goddard
Planning, Administrative, Constitutional
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court proceedings doing so. Viscount Simonds said: "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights in not to be excluded except by clear words. That is a 'fundamental rule' from which I would not for my part sanction any departure."
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