Smith's Weekly Publishing Company Limited v Myerson

The High Court of Australia considered an application for leave to appeal from an order of the Supreme Court of New South Wales. The dispute arose from an action for libel brought by Emanuel Myerson against Smith's Weekly Publishing Company Limited. The Supreme Court had previously set aside a jury's verdict for the defendant on one count of the plaintiff's declaration and ordered a new trial, while upholding the verdict on the other counts. The defendant had also applied to the Supreme Court for leave to appeal to the Privy Council under the Order in Council of 2nd April 1909, but this application was refused.

The legal issues before the High Court were whether leave to appeal should be granted from the Supreme Court's order directing a new trial, and whether the defendant's prior unsuccessful application for leave to appeal to the Privy Council affected its right to seek leave to appeal to the High Court. The defendant argued that the order for a new trial was appealable to the High Court with leave, and that its prior steps towards a Privy Council appeal did not preclude this application. The defendant also sought special leave to appeal from the Supreme Court's order striking out its fifth plea.

The High Court, in a joint judgment, refused leave to appeal. The Court reasoned that the Supreme Court's refusal of leave to appeal to the Privy Council, which was not challenged, indicated that the case was not considered to be of sufficient public importance for submission to the Privy Council. Consequently, it was difficult to see why leave to appeal to the High Court should be granted. Alternatively, the Court noted that if the Supreme Court's refusal of leave to appeal to the Privy Council was wrong, the defendant still had recourse by applying directly to the Privy Council for special leave to appeal from either of the Supreme Court's decisions. The Court also refused special leave to appeal from the order striking out the fifth plea.