Symons v City of Perth

This case concerned an appeal from a decision of a Police Magistrate in Perth, Western Australia, to the High Court of Australia. The complainant, Hedley Vicars Symons, had laid a complaint against the City of Perth alleging a breach of an award made by the Commonwealth Court of Conciliation and Arbitration. After the Police Magistrate dismissed the complaint, the complainant sought and obtained an order nisi to review from Burnside J., a Judge of the Supreme Court of Western Australia. This order nisi was made returnable before a Justice of the High Court. The matter was subsequently referred to the Full Court of the High Court.

The central legal issue before the High Court was whether a Judge of a State Supreme Court had the jurisdiction to grant an order nisi to review, which was made returnable before the High Court, in an appeal from an inferior court exercising federal jurisdiction. The respondent raised preliminary objections, arguing that such an order could only be granted by a Justice of the High Court and that the procedure followed was therefore improper.

The High Court, by a majority, held that the appeal was incompetent. The Court interpreted Rule 1 of Part II, Section IV of the Rules of the High Court 1911 to mean that while the *manner* of bringing an appeal to the High Court from an inferior State court exercising federal jurisdiction should mirror the state procedure for appeals to the State Supreme Court, it did not confer power on a State Supreme Court Judge to grant an order nisi returnable before the High Court. Section 39(2) of the Judiciary Act 1903-1920 provided for appeals to the High Court where an appeal lay to the State Supreme Court, but the Rules of the High Court governed the *procedure* for bringing such appeals. The Court found no basis in the Judiciary Act or the Rules for a State Supreme Court Judge to launch an appeal to the High Court.

Consequently, the High Court struck out the appeal. The majority ordered that the appeal be struck out with costs.