King v Kirkpatrick

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The original dispute arose from a criminal information laid by Roger Huntley Kirkpatrick against Robert Francis King, alleging that King had fraudulently appropriated a cheque. The information did not specify the owner of the cheque. At the hearing, the justices dismissed the information on the grounds that it disclosed no offence and ordered the informant, Kirkpatrick, to pay the defendant's costs and witnesses' expenses. Kirkpatrick then obtained a rule nisi for a statutory prohibition under section 112 of the Justices Act 1902 (NSW) to restrain further proceedings on the dismissal order. The Supreme Court, by a majority, made the rule absolute only in so far as it related to the costs awarded against Kirkpatrick. King, the defendant, then sought special leave to appeal to the High Court.

The legal issues before the High Court were whether special leave to appeal should be granted, and if so, whether the Supreme Court had erred in making the prohibition absolute regarding costs. A preliminary objection raised by King was that the remedy of statutory prohibition under section 112 of the Justices Act 1902 was not available to a prosecutor following the dismissal of a criminal charge, particularly when the appeal was solely concerning costs.

The High Court, by a majority (Griffith C.J. dissenting), refused special leave to appeal. The majority reasoned that the appeal, if allowed, would be an appeal as to costs only, and in such circumstances, they would not grant special leave. Griffith C.J., dissenting, indicated that he believed the Supreme Court had assumed a novel jurisdiction and that leave to appeal should be granted. It was also suggested by Griffith C.J. that the remedy of statutory prohibition might not have been available to the informant in the first place.

Consequently, the application for special leave to appeal to the High Court was refused.