Backhouse v Moderana - [1904] HCA 26

officer should be entitled to receive when those departments were transferred.

For all these reasons it seems to us that the construction sug- gested by Mr. Cussen is excluded by the considerations usually called in aid in construing an ambiguous section of an Act. The plain meaning is that, as soon as the enquiry has been made what is the salary to which an officer is entitled on 27th December, 1900, the section is exhausted. The plaintiff says that he was entitled to a salary of £100 a year at that time, and he has received it. He has not made out any cause of action in respect of any addition to that salary.

Other questions have been raised with which it is unnecessary for us to deal.

Questions answered in favour of defendants. Solicitors, for petitioner, Rigby &Fielding, Melbourne. Solicitor, for respondent, Powers, Commonwealth Crown Solicitor.

[HIGH COURT OF AUSTRALIA.] BACKHOUSE MODERANA

RESPONDENT; PLAINTIFF.

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Practice-Irregular service of initiatory process-Appeal-Prohibition- - Special

leave to appeal-Rule upon which the High Court will act in granting leave to appeal.

Irregularity in the service of initiatory process does not oust the jurisdic- tion of the Court. Such a defect is a ground for appeal, and not for prohibition. Barker v. Palmer, 8 Q. B.D., 9, approved.

1 CLR 676

The principles on which the High Court will grant special leave to appeal from the Supreme Court of a State as laid down in Dalgarno v. Hannah (aute p. 1), applied.

MOTION for special leave to appeal. This was a motion by the defendant, Backhouse, for special leave to appeal to the High Court of Australia from an order of the Supreme Court of Western Australia, dated the fourth of October, 1904, discharging a rule nisi for a prohibition calling upon the mining warden at Mount Magnet and one Moderana to show cause why a writ of prohibition should not issue restraining the respondents from further proceeding on a judgment or order of the Warden's Court, dated the 8th July, 1904. The action was one in which the plaintiff sued the defendant and one Canning to recover the sum of £148 3s. for work done, goods supplied, and the hire of horse let to hire by the plaintiff to the defendants in connexion with the working of Gold Mining Lease 463M. Judg- ment was obtained by the plaintiff in default of appearance by the defendants for the full amount claimed, and a rule nisi for a prohibition was obtained by Backhouse on the grounds

1. That the warden had no jurisdiction to entertain the matter; 2. That the applicant was not served with any process in the matter; and

3. That the proceedings were bad on their face. Forster, for the defendant in support of the motion. Ten clear days had not elapsed between the issue and the return day of the summons as required by the Goldfields Regulations. The Full Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Backhouse v Moderana

Details

AGLC: Backhouse v Moderana [1904] HCA 26
Case: [1904] HCA 26
Decision Date: 11 October 1904

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal concerning the irregular service of initiatory process. The applicant, Backhouse, sought to challenge a decision that had apparently arisen from proceedings where service of the originating process was alleged to be irregular.

The central legal issue before the High Court was the rule or principle upon which it would act in granting special leave to appeal in circumstances involving irregular service of initiating process. This required the Court to consider the threshold for intervention in such matters.

The Court's reasoning, as indicated by the catchwords, focused on the established principles governing the grant of special leave to appeal. While the specific details of the irregular service and the lower court's decision are not elaborated, the Court's approach would have involved assessing whether the alleged irregularity raised a question of law of sufficient importance to warrant the High Court's attention, or whether there were other compelling reasons for granting leave. The Court would have been mindful of the need to uphold the integrity of procedural rules while also ensuring that justice is not defeated by technicalities, particularly where substantial prejudice might arise from irregular service.

Orders