Re Eather v R [1915] HCA 86; (1915) 20 CLR 147 (15 June 1915)

HIGH COURT OF AUSTRALIA

H C of A

15 June 1915

Griffith C.J., Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

The learned Chief Justice made the following statement from the Bench:?

Griffith C.J.,

Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

Since the decision of the Court in Eather v. The King[1] it has been ascertained that the rule of practice as formulated in that case is interpreted by the members of the Court in different senses. The case cannot, therefore, for the future be regarded as an authority.

As we interpret sec. 35 (1) (b) of the Judiciary Act, the Court has an unfettered discretion to grant or refuse special leave in every case, but we think that the term "special leave" connotes the necessity for making a primâ facie case showing special circumstances.

I speak for all the members of the Court except my brother Barton, who is absent from the Commonwealth.

1. [1914] HCA 77; 19 C.L.R., 409.