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Report No. 44

21. Need for express provision.-

In Colonial Sugar Refining Co. v. Irving, 1905 AC 369 (372). the Privy Council held that the (Australian) Commonwealth Judiciary Act, section 39, which abrogated the power of the court to grant leave to appeal to the Privy Council, did not affect the right of the appellant to file an appeal under the old law since the suit was pending when the section came into force. The section was "not retrospective by express enactment or by necessary intendment"; and the right of appeal was not a mere matter of procedure. "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure."

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