Grayndler v Cunich

The appellant, Grayndler, appealed to the High Court from decisions of a New South Wales Court of Petty Sessions, which had dismissed informations laid against the respondent, Cunich, for alleged breaches of section 9 of the Commonwealth Conciliation and Arbitration Act 1904-1934. In one instance, the magistrate dismissed the information with costs awarded against the informant, Grayndler. Grayndler sought to appeal to the High Court by way of notice of appeal and, in the case where costs were awarded, by way of a rule nisi for statutory prohibition.

The High Court was required to determine whether the appeals, as instituted by the informant, were competent. Specifically, the court had to consider whether the procedure adopted by the informant for bringing appeals from an inferior State court exercising federal jurisdiction to the High Court was permissible under the relevant Commonwealth and State legislation and High Court Rules. A further issue arose regarding the availability of statutory prohibition as a means of appeal from an order of dismissal, particularly when costs were also awarded.

A majority of the High Court (Latham C.J., Rich, Starke, and McTiernan JJ.) held that an appeal to the High Court from an inferior State court exercising federal jurisdiction is only competent if it is brought in the manner prescribed by the law of the State for appeals from that inferior court to the Supreme Court of the State. As the New South Wales law did not provide for an appeal by way of notice of appeal from a Court of Petty Sessions to the Supreme Court in such matters, the appeals instituted by notice of appeal were deemed incompetent. Furthermore, the majority held that statutory prohibition under section 112 of the Justices Act 1902 (N.S.W.) was not a permissible procedure for appealing an order of dismissal, even if costs were awarded. They reasoned that a prohibition could not lie against an order of dismissal itself, and therefore, any consequential order for costs could not be effectively challenged through this process. Evatt J. dissented on the latter point, expressing doubts about the majority's interpretation.

Consequently, the High Court ordered that all the appeals instituted by notice of appeal and by way of statutory prohibition be struck out as incompetent. The Court also refused an application for special leave to appeal, finding that the matters did not raise a clear or unembarrassed question of law of general importance.