Category Archives: Appeals

Sharman v Evans [1977] HCA 8

ON 25 FEBRUARY 1977, the High Court of Australia delivered Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 (25 February 1977).

http://www.austlii.edu.au/au/cases/cth/HCA/1977/8.html

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R v Watson; Ex parte Armstrong [1976] HCA 39

ON 3 AUGUST 1976, the High Court of Australia delivered R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976).

http://www.austlii.edu.au/au/cases/cth/HCA/1976/39.html

The decision sets out the test under Australian law for apprehended bias.

A judge must not hear a case if “the parties or the public might reasonably suspect that he was not unprejudiced and impartial”: per Barwick CJ, Gibbs, Stephen and Mason JJ at 263.

Public confidence in the administration of justice is of fundamental importance: “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”: at 263.

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Privy Council (Appeals from the High Court) Act 1975 (Cth)

ON 8 JULY 1975, the Commonwealth Privy Council (Appeals from the High Court) Act 1975 commenced, abolishing appeals from the High Court of Australia to the Privy Council.

http://www.austlii.edu.au/au/legis/cth/consol_act/pcfthca1975417/

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1970 | Aboriginal Legal Service

ON 1 JUNE 1970, the Aboriginal Legal Service was established.

http://www.alsnswact.org.au/pages/contact

Lawyer
Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer

1951 | Suitor’s Fund Act 1951

ON 1 NOVEMBER 1951, the NSW Suitor’s Fund Act 1951 commenced.

Lawyer
Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer

Kemp v R [1951] HCA 39

ON 17 JULY 1951, the High Court of Australia delivered Kemp v R [1951] HCA 39; (1951) 83 CLR 341 (17 July 1951).

The accused had been indicted on three counts of indecent assault and acquitted of two. A new trial was held for the third, resulting in conviction.

During the new trial, the complainant gave evidence of similar acts consisting of offences on two occasions prior to the third. The High Court held that the evidence was not admissible as it may have included the two counts of which the accused had been acquitted.

Accordingly, the court held that the conviction could not stand. Instead of ordering a new trial, the court ordered that the conviction be quashed as the accused had served nearly two years of the sentence.

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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House v R [1936] HCA 40

ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).

http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html

The exercise of a judge’s discretion may be reviewed on appeal if the judge:

  • Acts on a wrong principle.
  • Allows him or herself to be guided by extraneous or irrelevant matters.
  • Mistakes the facts.
  • Fails to take into account a material consideration.

If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

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