Smith Kline & French Laboratories (Australia) Limited & Ors v Commonwealth of Australia

The parties to this proceeding before the High Court of Australia were Smith Kline & French Laboratories (Australia) Limited and others (the plaintiffs/applicants) and the Commonwealth of Australia (the first and second respondents), with Alphapharm Pty Limited also involved. The plaintiffs sought an interlocutory injunction in a matter commenced in the Federal Court, challenging the constitutional validity of provisions of the Federal Court Act and the Judiciary Act that require special leave to appeal to the High Court. The plaintiffs asserted a right to appeal without needing such leave.

The central legal issues before the High Court were whether section 33 of the Federal Court Act and section 35 of the Judiciary Act, in requiring special leave for appeals to the High Court, were valid. The plaintiffs argued that these provisions were not valid exceptions or regulations that the Parliament could prescribe under section 73 of the Constitution. Furthermore, the plaintiffs contended that if the vesting of a discretion in the High Court to grant special leave was not an exercise of judicial power, then the provisions were valid as a statutory discretion.

The court was required to consider the constitutional basis for the special leave provisions governing appeals to the High Court. The plaintiffs' argument rested on the assertion that the Parliament lacked the constitutional authority to impose a special leave requirement under section 73 of the Constitution, which outlines the appellate jurisdiction of the High Court. Alternatively, they argued that if the discretion to grant leave was not considered an exercise of judicial power, then the provisions could be sustained as a valid statutory discretion. Notices under section 78B of the Judiciary Act were given, with Tasmania indicating it did not wish to intervene.