De Bortoli v Kenny

The High Court of Australia heard appeals from the Supreme Court of New South Wales concerning seven convictions of Vittorio De Bortoli for offences under the National Security (Prices) Regulations. De Bortoli had been fined £100 for each offence. The Supreme Court had discharged rules nisi for statutory prohibition that De Bortoli had obtained to review these convictions. De Bortoli sought to appeal to the High Court as of right, arguing that the Supreme Court's orders indirectly involved a question respecting a civil right amounting to or of the value of £300, specifically the right to sell goods without the restriction of a notice from the Prices Commissioner.

The primary legal issue before the High Court was whether the appeals brought by De Bortoli were competent as appeals as of right under section 35(1)(a)(2) of the Judiciary Act 1903-1947. This required determining whether the orders of the Supreme Court, which affirmed the convictions, indirectly involved a question respecting a civil right amounting to or of the value of £300. The appellant contended that the validity of the Prices Commissioner's notice, and the potential financial consequences of its invalidity, engaged such a civil right.

The Court reasoned that the orders of the Supreme Court merely affirmed the convictions, and these convictions themselves did not directly or indirectly involve any civil right amounting to or of the value of £300. The Court distinguished between the financial consequences that might flow from the legal reasoning supporting a conviction and a civil right directly involved in the curial order itself. It held that the convictions, being criminal matters, did not satisfy the criteria for an appeal as of right under section 35(1)(a) of the Judiciary Act, regardless of the potential financial impact on the appellant's business. The Court considered the application for special leave to appeal separately, noting that the primary point of public importance concerned the validity of the price-fixing order, which had been addressed by subsequent amendments to the regulations and prior High Court decisions.

Consequently, the High Court found the appeals to be incompetent and ordered them to be struck out with costs. Special leave to appeal was refused.