Barton-Smith v Railton [1918] HCA 78; (1918) 25 CLR 427 (17 December 1918)

HIGH COURT OF AUSTRALIA

Barton-Smith Informant, Appellant; and Railton and Others Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

17 December 1918

Griffith C.J., Barton and Rich JJ.

Watt and Ferguson, for the applicant.

Griffith C.J.

It is not the practice of this Court or of the Judicial Committee of the Privy Council to grant special leave to appeal from an order discharging an accused person merely upon the suggestion that the Court sought to be appealed from has fallen into error in deciding an obscure question of technical guilt, or in deciding a mixed question of law and fact upon which opinions may honestly differ.

For these reasons I think that leave should be refused.

At the same time, I do not desire that it should be supposed that I dissent from the judgment of the learned Judge, or think that his conclusion on the facts was erroneous.

Barton J.

I agree with the reasons of his Honor the Chief Justice. I have read the judgment of his Honor Mr. Justice Sly, and see not the slightest reason for disagreeing with him.

Rich J.

In agreeing with the order to be proposed by the Chief Justice I must not be taken as approving in any way of the conduct of the aldermen in the acceptance of the free passes in question, or as departing from the wholesome rule that a person in a fiduciary position must not make a profit out of his trust. Such a person who in his office accepts a benefit may in proper proceedings, at the instance of those to whom he is responsible, be made accountable to them. There is another angle of view from which this matter is objectionable—it may possibly lead to a conflict of duty with interest. We, however, are concerned only with the construction of the Statute.

Special leave to appeal refused.

Solicitor for the applicant, A. J. Macaulay.