Barclay v Linnane [1956] HCA 17

High Court of Australia Dixon C.J. Williams, Fullagar, Kitto and Taylor JJ. Barclay v Linnane [1956] HCA 17

ORDER The applicant having submitted to terms as to costs, order that special leave to appeal be granted upon the terms that the applicant pay the costs of the defendant respondent taxed on the footing that one counsel only be allowed. Order that the application for special leave be treated as the appeal. Appeal allowed. Order of Clancy J. discharged. In lieu thereof order that the matter the subject of the case stated to the Supreme Court be remitted to the magistrate with the opinion of the Court that the decision dismissing the information was erroneous. Order that the applicant pay the costs of the defendant respondent of the application taxed upon the footing that one counsel only be allowed.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 18 Dixon C.J., Williams, Fullagar, Kitto and Taylor JJ.

This is an application for special leave to appeal by an informant in a prosecution under s. 133 (1) (a) of the Government Railways Act 1912-1955. The information was dismissed by the magistrate. The informant appealed from the dismissal to the Supreme Court by way of case stated but this appeal was dismissed by Clancy J. It is from the order dismissing the appeal that the informant now seeks special leave to appeal.

The defendant is a station assistant in the employ of the Railway Commissioner of New South Wales. Section 133 (1) provides that: "If any person employed upon the railway or in repairing and maintaining the works of the said railway—(a) is found drunk or under the influence of intoxicating liquor or any drug whilst so employed upon the said railway any railway officer or agent, or any special constable duly appointed, and all such persons as any of them may call to his assistance, may seize and detain such person so offending, or any person counselling, aiding or assisting any such offence, and convey him with all convenient despatch before any magistrate, or two justices of the peace, without any other warrant or authority than this Act, to be dealt with according to law." Sub-section (2) of s. 133 fixes a maximum penalty of six months' imprisonment or a fine of fifty pounds.