Collins (alias Hass) v The Queen [1975] HCA 60

High Court of Australia Barwick C.J. McTiernan, Stephen, Mason and Jacobs JJ. Collins (alias Hass) v The Queen [1975] HCA 60

ORDER Application refused.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 22 Barwick C.J., Stephen, Mason and Jacobs JJ.

Section 86 of the Judiciary Act 1903-1973 ("the Act") empowers the Court to make Rules of Court necessary or convenient to be made for carrying into effect the provisions of the Act or so much thereof as relates to the practice and procedure of the Court. The rules of this Court made pursuant to this power provide in O. 70, r. 2(6) that an application for leave or special leave to appeal shall be made to a Full Court by counsel.

It is submitted that this rule is invalid because it is repugnant to s. 78 of the Act which provides that "in every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by the laws and rules regulating the practice of those Courts respectively are permitted to appear therein". The first question is one of construction, namely, whether an applicant for special leave is a "party" within the meaning of s. 78.

In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court. Secondly, the application must exhibit features which attract the Court's discretion in granting leave or special leave. There is no right to leave or special leave. In the latter case, the matter must involve questions of general public importance. The special nature of the application must be maintained in contradistinction to proceedings inter partes brought as of right or pursuant to the Court's leave. This distinction is well maintained by such a provision as O. 70, r. 2(6). We do not think that an applicant for leave or special leave can be described as a party within the meaning of s. 78 of the Act.