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[1915] HCA 86
High Court of Australia
1915-07-01
Rich JJ
Original judgment source is linked above.
certainly think, however, that the order nisi itself should also have been stuck up, as the only means of service available. The application is refused.
Solicitors, for the plaintiffs, Darvall & Horsfall. BL.
[BIGH COURT OF AUSTRALIA.) In rE EATHER v. THE KING.
Practice - High Court - Appeal from Supreme Court of State - Criminal matter - Special leave - Judiciary Act 1903-1912 (No. 6 of 1903 - No. 31 of 1912), sec. 35 (1) (b).
'The High Court has, under sec. 35 (1)( b) of the Judiciary Act 1903-1912, an unfettered discretion to grant or refuse special leave in every case, but a primd facie case showing special circumstances must be made out.
'The statement of the practice of the High Court in granting leave to appeal in criminal cases, as formulated in Hather v. The King, 19 C.L.R., 409, is not to be regarded as authoritative.
The learned Chief Justice made the following statement from the Bench : -
Since the decision of the Court in Hather v. The King (1) it has been ascertained that the rule of practice as formulated in that case is interpreted by the members of the Court in different senses. The case cannot, therefore, for the future be regarded as an authority.
As we interpret sec. 35 (1) (b) of the Judiciary Act, the Court has an unfettered discretion to grant or refuse special leave in every case, but we think that the term "special leave" connotes
the necessity for making a primd facie case showing special _ circumstances. Ispeak for all the members of the Court except my brother
AusTRAL- ASIAN 'TEMPERANCE AND GENERAL Morvat Lire AssURANCE Soorery Lr.
Griffith C.J., Isaacs, Higgins, Gavan Dufty, Powers and Rich JJ.
Lr.
Hotnann.