Hogan v Ochiltree [1910] HCA 9

10 C.L.R.] OF AUSTRALIA.

Solicitor, for the appellant, A. H. Pace. Solicitors, for the respondents, Atthow & McGregor.

JSomaie ob

[HIGH COURT OF AUSTRALIA.]

HENRY WILLIAM HOGAN. : . . PLAINTIFF; AND

ALFRED GRAHAM OCHILTREE c . DEFENDANT.

Judiciary Act 1903 (No. 6 of 1903), secs. 40, 42—Cause arising unier the Constitu- tion, or involving its interpretation—State legislation inconsistent with. previous decision of High Court—Case remitted to State Court.

In August 1909 the High Court, in an appeal from the Supreme Court of New South Wales, held that the plaintiff had no title to occupy the land, in respect of which this action was brought,,in the previous June. 'The legis- lature of New South Wales subsequently passed an Act declaring, in effect, that the plaintiff should be deemed to have had a title to occupy the lands in question at that date.

Hed, that this did not raise any question under the Constitution, or involving its interpretation, within sec. 40 of the Judiciary Act 1903. The question of the validity of this Act having been referred to the High Court by the State Court, upon objection taken by counsel for the defendant in that Court that the Act was unconstitutional, the High Court, on the plaintiff's application, remitted the case to the Supreme Court, and ordered the defendant to pay the costs of the application.

APPLICATION by the plaintiff for an order remitting the suit to the Supreme Court of New South Wales in Equity from which it had been removed to the High Court under sec. 40 (1) of the Judiciary Acts 1903-7.

In June 1909 this suit was brought by the plaintiff against the defendant in the Supreme Court of New South Wales in Equity

H.C, or A. 1910. ee)

FRACKELTON v. ArrHow.

H. C. oF A. 1910. ad

Sypyey,

March 30.

Griffith O.J., Barton, O'Connor and Isaacs JJ.

H. U. or A.