Endresz v Whitehouse

[1995] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M62 of 1994

B e t w e e n -

ALLAN PAUL ENDRESZ

Applicant

and

PATRICK JOHN WHITEHOUSE

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 9.48 AM

Copyright in the High Court of Australia

MR B. BEAUMONT, QC:   If your Honours please, I appear with my learned friend, MR E.J. POWER, on behalf of the applicant in this matter.  (instructed by Cain & Cleeves Pty)

MR M. ROZENES, QC:   May it please the Court, I appear with my learned friend, MR S.F. VORREITER, for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

MR BEUMONT:   Your Honours, this is an application for leave to appeal against a judgment of Mr Justice Hansen.  Your Honours, we are mindful of the effect of the decision in Sanofi v Parke Davis Pty Ltd and that it is the practice of this Court, as provided in that judgment of which your Honour was a member of the Court, that the established practice of this Court is to refuse special leave to appeal in a case in which appeal can be taken to a Full Court of the Federal Court or of a Supreme Court, unless that Court has already decided the very question in another case and is bound or at least virtually certain to reach the same conclusion in the instant case.

Your Honours, these were matters which arose out of a Magistrates’ Court decision and it would appear that, unfortunately, someone took the view, your Honours, that an order to review was still the applicable method and, in those circumstances, there was no appeal to the Full Court.  However, it would now appear that, under section 92 of Magistrates’ Court Act, that there is an appeal to a single judge and then from that single judge to the Full Court of the Supreme Court of Victoria.  In those circumstances, your Honours, the only reason that we can say as to why, even if we satisfied all the other criteria as to why special leaved should be granted, in essence is that it would have the effect of barring Mr Endresz from taking his appeal because his appeal is completely out of time to the Supreme Court of Victoria.

We quite openly acknowledge that the position is that we do not come within the criteria as set out in Sanofi and the only basis upon which we can say that there may be some special reason in those circumstances as to why this is appropriate for resolution is basically, your Honours, even that there is not even a Full Court decision of any court in this country on these particular provisions, some of which have been amended.  It seems to me, your Honours, that that is a threshold point that I have some difficulty in coping, other than to put those matters before the Court straight off.

MASON CJ:   Thank you, Mr Beaumont.

MR BEUMONT:   May I just say one other thing, your Honours?

MASON CJ:   Yes, Mr Beaumont.

MR BEUMONT:   We were going to ask the Court to remit it back, but there does not appear, by a search of all the rules and everything in all the Acts, that there is any power for your Honours to remit the matter to the Supreme Court.

MASON CJ:   No, I think we would have to grant special leave, hear the appeal and make an order on the appeal in order to achieve that result, Mr Beaumont.

MR BEUMONT:   I understand that, your Honours.

MASON CJ:   The Court need not trouble you, Mr Rozenes.

In the view of the Court, no reason has been shown for departing from the established rule that except in exceptional circumstances the Court will not grant special leave to appeal from a decision other than that of an intermediate Court of Appeal.  The application is therefore refused.

MR ROZENES:   May it please the Court, I make an application for costs in this appeal.

MASON CJ:   What do you say about that, Mr Beaumont?

MR BEAUMONT:   I have some difficulty, in the circumstances, in opposing it, your Honour.

MASON CJ:   In view of the fact that this is a criminal proceeding, the Court is of opinion that there should be no order for costs.

MR ROZENES:  If the Court pleases.

AT 9.53 AM THE MATTER WAS CONCLUDED