Ex parte Gordon [1906] HCA 12; (1906) 3 CLR 724 (29 March 1906)

HIGH COURT OF AUSTRALIA

Ex parte Gordon

H C of A

29 March 1906

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

Pollock in support.

The judgment of the Court was delivered by Griffith C.J.

March 29

Griffith C.J.

Barton and O'Connor JJ.

Sec. 39 (b) of the Judiciary Act 1903 provides that in cases where federal jurisdiction is vested in a State Court, whenever an appeal lies from the decision of that Court to the Supreme Court of the State, an appeal from the decision may be brought to the High Court. In this case the matter was heard by a magistrate exercising federal jurisdiction, and from his decision an appeal lies to the Supreme Court, and therefore under that section an appeal may be brought to the High Court. Under the Rules of Court, Part II., sec. III., r. 1, (Rules of 22nd August, 1904), the appeal to the High Court in such a case is to be brought in the same manner as is prescribed by the law of the State for bringing appeals from the same Court to the Supreme Court of the State in like matters. One mode of appealing in New South Wales in such a case is to move for a rule nisi for a prohibition under sec. 112 of the Justices Act 1902 (No. 27 of 1902). In granting rules nisi for a prohibition it is usual for the Supreme Court to satisfy itself that the correctness of the decision is open to doubt, and it is not uncommon to refuse a rule nisi. Without saying that we will grant a rule nisi in every case in which it is asked for, we think we should be somewhat liberal in the interpretation of sec. 39 (b) of the Judiciary Act 1903, considering that, by the adoption of another form of appeal, an appeal might be brought without the leave of this Court. Without expressing any opinion as to the merits we think we should grant a rule nisi.

Rule nisi granted.

Solicitors, Malleson, Stewart, Stawell, & Nankivell, Melbourne.