Regina and The District Court of the Metropolitan District Holden at Sydney and Others [1966] HCA 69

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Regina and The District Court of the Metropolitan District Holden at Sydney and Others [1966] HCA 69

ORDER Motions for prohibition and certiorari both dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 9 Barwick C.J.

The applicant by notice of motion seeks writs of prohibition and certiorari directed to the Metropolitan District Court, Sydney, and in the case of prohibition, to the Minister for Labour and National Service as well, in respect of an order made by that Court sitting as a court of review under s. 29C of the National Service Act 1951-1965 Cth (the Act) upon the applicant's appeal from the decision and order of a court of summary jurisdiction that the applicant was a person to whom s. 29A (2) of the Act applied. The District Court dismissed the applicant's appeal and confirmed the magistrate's order.

The ground of the applications to this Court is that the District Court exceeded its jurisdiction in confirming the order of the magistrate and that an error of law appears on the face of the record of the District Court. The claim that an error of law so appears raises the same question as is raised by the claim that the Court exceeded its jurisdiction. The reason submitted in support of these grounds is that, there having been before the Court of summary jurisdiction an application for an order that the applicant was exempt under s. 29A (1.) from liability to render any service under the Act, the District Court's jurisdiction to make an order confirming the order of the magistrate was conditioned by the terms of ss. 29B (2.) and 29C (4.) either upon the fact that the applicant was not in truth an exempt person, or alternatively upon a finding by the District Court itself that the applicant was not such a person. It was submitted that the District Court had not so found but on the contrary had expressed a view of the facts of the case upon which the only conclusion to be drawn was that in its view the applicant was an exempt person.