Donohoe v Britz (No 1) [1904] HCA 53; (1904) 1 CLR 391 (29 June 1904)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

29 June 1904

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

Sir Julian Salomons, K.C., and J. L. Campbell, for the respondent.

J. L. Campbell followed.

Wade and Ferguson, for the appellant.

Sir Julian Salomons, K.C., in reply.

Griffith, C.J.,

Barton and O'Connor, JJ.

Per Curiam.?This is a very important constitutional question, now raised for the first time during the course of the case. The Court therefore is disposed to think that the motion should stand over till the hearing of the appeal. This point can then be argued, and the Court can consider it when dealing with the merits of the appeal. We have no doubt as to the competency of the appeal, as a matter of law. The Constitution gives the Court power to entertain appeals from the Supreme Court of any State, subject to such regulations and restrictions as may be prescribed by Parliament. Parliament has not imposed any restriction which would prevent us from hearing it. Under sec. 39 of the Judiciary Act, an appeal would lie direct to the High Court in this case. Nor has the Court any doubt that the question of law that is sought to be raised on this appeal is one of importance and of general interest to the mercantile community as well as to the Commonwealth Government. That being so, it is a proper case for granting special leave to appeal. We are also of opinion that the appellant did not, by the mere fact of attending the taxation of costs, estop himself from asking leave to appeal. The only question remaining on the present application was, whether the appellant's delay in applying for special leave is a sufficient bar. But now another point has been raised on behalf of the respondent, upon which the Court is not disposed to express an opinion at present. The application will therefore stand over until the hearing of the appeal. The question of costs of the motion will be reserved.

On 28th June, the appeal came on for hearing.

Appeal dismissed with costs.

Solicitor for appellant, The Crown Solicitor of New South Wales.

Solicitor for respondent, Mark Mitchell.