By John McKechnie AO, KC
On 9th August 1901, eight months following the birth of the Commonwealth of Australia and its Constitution, Mr Robert Hannah was quietly driving his horse and cab down Elizabeth Street Sydney when a broken overhead telephone wire snaked down, killed his horse which overturned the cab and injured him severely.
In due course Mr Hannah’s action for negligence was heard by a jury. A difficulty about who exactly should be sued was resolved when Mr James Dalgano, deputy postmaster consented to be the nominal defendant.
So how did the accident happen?
It appears that two workers were up a telephone pole when a wire snapped. Now this wouldn’t have been a great problem as the voltage in the wire was quite low. However, on the way down, it fell across a wire powering the trams which ran down Elizabeth Street and became electrified. When it finally made contact, the horse was electrocuted.
No one could really say why the wire snapped. It was only four years old. Wires could break for no reason. Still, the jury found that the defendant was negligent and awarded Mr Hubbard 200 pounds.
Mr Dalgano, who probably didn’t care much as no one was blaming him personally, appealed to the Full Court of NSW. The appeal was heard over two days and judgment delivered on 20 August 1903. Mr Dalgano’s counsel, the unfortunately named Dr Sly, persuaded one judge that negligence had not been proved but the other two judges upheld the jury’s verdict (not without some temporising).
Mr Dalgano, probably thinking it was not his money anyway, sought and obtained leave to appeal to the High Court on 15 October 1903.
Now the question as to whether there was any evidence of negligence on the part of the postmaster was one which had caused disagreement in the appeal court. Dr Sly wished to agitate it again in the High Court. He was opposed by a more appropriately named barrister, Wise KC.
But in the event, a more interesting question came out of nowhere. Did the High Court have jurisdiction?
The Judiciary Act 1903 was proclaimed and came into effect on 25 August 1903, 5 days after judgment had been given in the Full Court. So, it was argued, the Judiciary Act was not retrospective, and Mr Dalgano had no vested right of further appeal following judgment.
On the other hand, if the High Court gained its status and authority from the Constitution, there was nothing more to be said. The Court always had jurisdiction, even though it was an incorporeal body until 25 August 1903.
Faced with this conundrum on its very first day of sitting, the Court acted decisively. It noted that the issue of its jurisdiction was an interesting question, the answer to which could wait another day. Although leave to appeal had been granted, on second thoughts, there really wasn’t much of public interest in the facts so the best thing, all in all was to rescind the grant of leave.
That was that. Mr Dalgano retired shortly after and died aged 73 on 8 February 1915, shortly before thousands of young Australians would join him from the shores of Gallipoli.
The constitutional question posed on 4 November 1903 is still awaiting an answer.
Adapted from Dalgano v Hannah (1903) 3 SR NSW 494; Dalgano v Hannah (1903) 1CLR 1.
