R v Owens & Farrington [1933] HCA 20; (1933) 49 CLR 20 (27 April 1933)

HIGH COURT OF AUSTRALIA

The King against Owens and Farrington;

Ex parte Seaton.

H C of A

27 April 1933

Rich, Starke, Dixon and Evatt JJ.

O'Mara, for the informant, respondent.

Webb, for the applicant.

The Court delivered the following judgment:—

Rich, Starke, Dixon and Evatt JJ.

In this matter several points of procedure have been raised. The applicant adopted the course of obtaining an order nisi made by a Judge of the Supreme Court instead of a Justice of the High Court. But this procedure was declared to be wrong in the case of Symons v City of Perth[1]. Mr. Webb endeavoured to support the order nisi under sec. 17 of the Judiciary Act. At the time when the order was obtained there was no matter pending in the High Court, and therefore a Judge of the Supreme Court had no jurisdiction under that section to make the order. The same contention was advanced by Mr. Flannery in the case mentioned, and the point was necessarily involved in that decision. It was next suggested by Mr. Webb that the time for appealing should be extended. But, when the time for appealing has expired, it has been decided by this Court that the Court has no power to extend the time in the case of appeal (Delph Singh v Karbowsky[2]). In the absence of a Full Bench that decision should not be disturbed. Mr. Webb then suggested that this Court should grant a rule nisi, but no application was made within time to a Justice of this Court. Finally an application was made that special leave should be granted. But the facts appearing in the case do not very clearly raise the point of law which Mr. Webb wishes to argue, and, further than that, in view of the undertaking given by Mr. O'Mara that his client, the organization, will not hold the present applicant to his undertaking to plead guilty to other charges and will not contend that he is estopped in any other proceedings, this does not appear to be a case in which special leave should be granted.

Special leave is therefore refused and the appeal struck out with costs.

Appeal struck out with costs.

Solicitor for the applicant, R. C. Kirby.

Solicitors for the respondent, Marsland & Co.

[1] [1922] HCA 10; (1922) 30 C.L.R. 433.

[2] [1914] HCA 30; (1914) 18 C.L.R. 197.