O'Mara v Harris

James Andrew O'Mara sought special leave to appeal to the High Court from a decision of the Supreme Court of Western Australia, which had dismissed his appeal from an order of the Local Court at Perth. The dispute concerned an application for recovery of possession of business premises, where the respondent, Mrs. Dorothy Harris, claimed protection as a female dependant of a discharged member of the forces under the National Security (War Service Moratorium) Regulations. The primary factual issue before the magistrate was whether Mrs. Harris was indeed dependent on her husband, a discharged member of the forces, for her support.

The High Court was required to determine two principal legal issues. Firstly, whether there was sufficient evidence before the magistrate to establish that Mrs. Harris was a female dependant for the purposes of the relevant regulation. Secondly, and more significantly for the outcome, the Court had to consider the power of the Supreme Court to award costs in an appeal from a decision made under the National Security (Landlord and Tenant) Regulations, and conversely, the power of the High Court to award costs in an application for special leave to appeal from such a decision.

Latham C.J., delivering the judgment of the Court, held that the question of whether there was evidence of dependency was not a matter warranting special leave to appeal. However, the Court found that the Supreme Court of Western Australia had erred in awarding costs to Mrs. Harris on her appeal. This was because regulation 75 of the National Security (Landlord and Tenant) Regulations expressly prohibited the allowance of costs in proceedings to which Part III of those regulations applied, and the appeal to the Supreme Court fell within this prohibition. In contrast, the High Court's jurisdiction to award costs in relation to the application for special leave to appeal was founded upon the Judiciary Act 1903-1947, and was not affected by the National Security Regulations.

Consequently, the High Court granted special leave to appeal on the question of costs. The order of the Supreme Court was varied by striking out the provision relating to costs, and no order was made as to the costs of the application for special leave to appeal.