Backhouse v Moderana [1904] HCA 26; (1904) 1 CLR 675 (11 October 1904)

HIGH COURT OF AUSTRALIA

Backhouse Defendant, Appellant; and Moderana Plaintiff. Respondent;

H C of A

On appeal from the Supreme Court of Western Australia.

11 October 1904

Griffith, C.J., Barton and O'Connor, JJ.

Forster, for the defendant in support of the motion.

Griffith, C.J.

This is an application for special leave to appeal from the judgment of the Full Court of Western Australia discharging a rule nisi for a writ of prohibition. The case was brought in the Warden's Court, and was a claim for £148 for various services described as horse hire, so many shifts, removing a boiler, supply of mining timber, and carting ore to a railway station. The party moving, in his affidavit, says that he was carrying on business mining on a quartz claim as tributor, and not as registered owner, and that these goods were supplied to him for the purpose of carrying on these mining operations. Judgment was given for the plaintiff, and a prohibition was asked for upon two grounds, firstly, that the warden had no jurisdiction to entertain a claim of that nature, and secondly that the service of the summons upon the applicant was informal and not in accordance with the provisions of the law. The Full Court was against the applicant on both grounds. So far as regards the objection that the service of the summons was irregular—that is, that there was no effectual service at all—the argument is raised that a defect in the service prevents the Court from exercising jurisdiction. The Full Court held otherwise, and it was so held by the Queen's Bench in England, who were of opinion that such a defect was a ground for appeal and not for prohibition. This Court can see no reason to doubt the correctness of that decision It is clear, in the present case, that an appeal lay if the applicant was aggrieved by having had no notice, or by having judgment given in his absence. In such a case it is quite clear that a party can apply for a new trial. Such a right is given him by the express regulations of the Warden's Court; and even without such regulations I do not doubt that a Court of record, which has inadvertently given judgment against a man in his absence, has inherent jurisdiction to set right any such mistake. As to the point of the jurisdiction of the Warden's Court, the jurisdiction of that Court extends to all contracts, questions or disputes of any kind relating to a mining tenement or to mining. The term "mining" is defined to mean "all modes of prospecting and mining for and obtaining gold or minerals." The work, the subject of this action, appears to have been done, in part, under a contract to supply means for getting the gold from the ground, and as to another part under a contract to supply means for conveying the ore to a place where the gold might be extracted from it. The best that can be said is that it may be doubtful whether these particular contracts were contracts relating to mining. As to what the jurisdiction of the Warden's Court is, that, no doubt, is an important question, but whether that question arises in this case or not depends itself on a question of fact. We laid down in the case of Dalgarno v. Hannah, ante p. 1, that we would not grant special leave to appeal to this Court except in cases of public interest, or where an important point of law was in question. The only category under which it is suggested that this case falls is that it involves an important question of law. The suggested question of importance is the extent of the jurisdiction of the Warden's Court, but whether that question arises at all in this case is doubtful. In the case of Dalgarno v. Hannah, ante p. 12, we said, "It is, however a matter for our discretion to say whether so important a question should be decided in the present case. And considering the nature of the case, which is, we think, on the border-line, we think our discretion would be most fitly exercised by refusing leave to appeal." In an application for special leave to appeal made to the Privy Council this year in the case of McLaughlin v. The Daily Telegraph Newspaper Co. Ltd., ante p. 479, their Lordships repeated the rule in Prince v. Gagnon, which they said they would follow. The present case is unattended with doubt except on a question of fact; and it has never been the practice of the Judicial Committee of the Privy Council to grant special leave to appeal where the case involves merely a doubtful question of fact.

Barton, J., and

O'Connor, J.,

concurred.

Application refused.

Solicitor for the appellant, W. T. Forster.