Grayndler v Cunich [1939] HCA 32

62 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.}

GRAYNDLER . 2 5 7 z : APPELLANT ; InFormanr,

AND

CUNICH . : ~ 3 . . REsPpoNDENT. DEFENDANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF NEW SOUTH WALES.

High Court—Appeal from inferior court of State exercising Federal jurisdiction— Appeal not brought in manner prescribed by State law for appeal to Supreme Court—Appeal from Court of Petty Sessions (N.S.W.)—Notice of appeal— Dismissal of information with costs—Statutory prohibition—Judiciary Act 1903- 1937 (No. 6 of 1903—No. 5 of 1937), secs. 27, 39 (2) (b), (c)—High Court Pro- cedure Act 1903-1937 (No. 7 of 1903—No. 5 of 1937), sec. 31—Rules of the High Court, Part I1., sec. 1V., r. 1—Justices Act 1902 (N. (No. 27 of 1902), secs. 101, 112—Commonwealth Conciliation and Arbitration Act 1904-1934 (No. 13 of 1904—No. 54 of 1934), sec. 9.

An appeal to the High Court from the decision of an inferior court of a State in the exercise of Federal jurisdiction which is not brought in such manner as is prescribed by the law of the State for bringing appeals from that inferior court to the Supreme Court of the State in like matters is incompetent.

So held, by Latham C.J., Rich, Starke and McTiernan JJ. (Evatt J. doubting).

Held, further, by Latham C.J., Rich, Starke and McTiernan JJ., that where an information has been dismissed by a Court of Petty Sessions of New South Wales exercising Federal jurisdiction, the informant cannot, by adopting the procedure provided by sec. 112 of the Justices Act 1902 (N.S.W.) for an appeal by way of statutory prohibition, appeal to the High Court from the order of dismissal or (Evatt J. dissenting), where the information has been dismissed with costs against the informant, from the order for costs.

Ex parte Kirkpatrick, (1916) 16 S.R. (N.S.W.) 541; 34 W.N, (N.S.W.) 15; Ex parte McPherson; Re Moss, (1932) 50 W.N. (N.S.W.) 25; and In re Lachlan, (1886) 3 W.N. (N.S.W.) 54, in so far as it was therein held that the