Holmes v The Queen

The matter before the High Court of Australia concerned an application for special leave to appeal. The applicant was represented by Mr G.D. Wendler and Mr P.T. Byrt, while the respondent, the State of South Australia, was represented by Mr J.J. Doyle, QC, and Mr M.J.M. Quinlan. The core of the discussion revolved around the procedural requirement of serving notices under section 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General of the Commonwealth and the States.

The primary legal issue was whether section 78B notices were required to be served in an application for special leave to appeal when the matter had not yet proceeded to a full hearing before the High Court. Mr Wendler argued that, as he understood section 78B, it referred to matters pending in a Federal Court other than the High Court, and that until special leave was granted, there was no "proceeding" before the High Court in which such notices would technically be contemplated. This was contrasted with the practice of issuing such notices at earlier stages of the appeal process.

The Chief Justice, Mason CJ, clarified that Mr Wendler's submission was confined to the application for special leave itself, as distinct from other proceedings before the Court. The Solicitor-General for South Australia, Mr Doyle, confirmed that notices had been issued at previous stages and that the States' general attitude had been to intervene only if the matter reached substance before the High Court, which he understood to mean upon the grant of special leave. The Court acknowledged that the current proceedings were solely for the determination of special leave.