Boyd v Macpherson [1919] HCA 52; (1919) 27 CLR 245 (7 October 1919)

HIGH COURT OF AUSTRALIA

Boyd Applicant; and Macpherson Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

7 October 1919

Barton, Isaacs and Rich JJ.

J. R. Macfarlan, for the applicant.

Starke, for the respondent.

J. R. Macfarlan, in reply.

The judgment of the Court, which was delivered by Barton J., was as follows:—

Barton, Isaacs and Rich JJ.

We wish to refer again to what was said by the High Court, including all the members of the Court except myself, in In re Eather v. The King[1]: "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." We have no desire to limit that discretion. It must remain unfettered; but, having considered the arguments on both sides as to whether, having that discretion, we should grant special leave to appeal on the ground that a primâ facie case showing special circumstances has been made, we think that on the whole Mr. Macfarlan has not established that position, and that special leave must be refused.

Special leave to appeal refused.

Solicitors for the applicant, Blake & Riggall.

Solicitors for the respondent, Hedderwick, Fookes & Alston.

[1] [1915] HCA 86; 20 C.L.R., 147.