Re Eather v R

[1915] HCA 86

20 C.L.R.J

OF AUSTRALIA.

certainly think, however, that the order nisi itself should also H. C. oi- A.

have been stuck up, as the only means of service available.

1915.

The application is refused.

Au s t r a l ­

a s ia n

T e m p e r a n c e

Motion dismissed.

AND

G e n e r a l

Solicitors, for the plaintiffs, Darvall <& Horsfall.

M u t u a l

L if e

B. L.

A s s u r a n c e

S o c ie t y

L t d .

V.

H o l l a n d .

[BIGH COURT OF AUSTRALIA.]

In r e b a t h e r v . THE KING.

Practice—High Court—Appeal from Supreme Court of State—Criminal matter—

H. C. OF A.

Special leave—Judiciary Act 1903-1912 (No. 6 o / 1903—No. 31 o/1912), sec.

1915.

35 (1) (6).

M e l b o u r n e ,

The High Court has, under sec. 35 (1)( 6) of the Judiciary Act 1903-1912, an

unfettered discretion to grant or refuse special leave in every case, but a

June 15.

primd facie case showing special circumstances must be made out.

Griffith C.J.,

Isaacs,

The statement of the practice of the High Court in granting leave to Hipfgins,

appeal in criminal cases, as formulated in Bather v. The King, 19 C.L.R.,

Gavan Duffy,

Powers

409, is not to be regarded as authoritative.

and Rich JJ.

The learned Chief Justice made the following statement from the Bench;—

Since the decision of the Court in Father v. The K ing (1) it has been ascertained that the rule of practice as formulated in that case is interpreted by the members of the Court in different senses. The case cannot, therefore, for the future be regarded as an authority.

As we interpret sec. 35 (1) (5) of the Judiciary Act, the Court has an unfettered discretion to grant or refuse special leave in every case, but we think tha t the term “ special leave” connotes the necessity for making a p rim d facie case showing special circumstances.

I speak for all the members of the Court except my brother

Barton, who is absent from the Commonwealth.

B. L.

(1) 19 C .L .K , 409.