Henderson v Pioneer Homes Pty Ltd [1979] HCA 55

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Henderson v Pioneer Homes Pty Ltd [1979] HCA 55

ORDER Application for special leave to appeal dismissed. Order that a writ of mandamus issue directed to the Federal Court of Australia and Judges thereof, Mr. Justice Smithers, Mr. Justice Franki and Mr. Justice Northrop, commanding them to exercise, in relation to the Special Case stated by Mr. Justice Smithers, the jurisdiction conferred upon them by s. 25 (6) of the Federal Court of Australia Act 1976.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 7 Stephen, Mason and Wilson JJ.

This matter turns upon a quite narrow point: whether a single judge of the Federal Court of Australia before whom a prosecution for an offence is proceeding is empowered by s. 25 (6) of the Federal Court of Australia Act 1976 to state a case to the Full Court of the Federal Court.

A number of prosecutions brought against Pioneer Homes Pty. Ltd. and Pioneer Agencies Pty. Ltd. by the informant, Henderson, came on for hearing before Smithers J. in the General Division of the Federal Court. At the request of the parties his Honour, in exercise, as he thought, of power conferred by s. 25 (6), stated a special case to the Full Court. When the matter came before the Full Court the question arose whether s. 25 (6) in fact empowered his Honour to state a case. In considered judgments Franki and Northrop JJ. concluded that he lacked that power [6a] . The third member of the Full Court was Smithers J. He dissented, asserting that such power did in fact exist. The order of the Full Court was that the case stated be struck out.

1. (1979) 38 F.L.R. 460; 25 A.L.R. 179.

This outcome satisfied neither side. Each adopted a different course in an endeavour to attain the common aim of having the Full Court of the Federal Court hear and determine the questions raised in the special case. The two Pioneer companies for that purpose sought mandamus in this Court, directed to the Federal Court and to the three members of it who constituted the Full Court. The course taken by the informant, Henderson, was to seek special leave to appeal from the order of the Full Court. Those two proceedings have now come before us and argument on each has been heard together. The result has been that although the arguments advanced by the parties were not identical they both involved the proposition that s. 25 (6) did empower Smithers J. to adopt the course he did in stating a special case to the Full Court. Although in the result we have heard no oral argument to the contrary, the reasons for judgment of Franki and Northrop JJ. provide an extensive statement of the contrary view.