Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43

Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43

Sections 33(3) of the Federal Court of Australia Act 1976 (Cth) and 35(2) of the Judiciary Act 1903 (Cth), requiring special leave to appeal, are valid 'regulations' under s.73 of the Constitution and do not prevent the High Court from hearing and determining appeals; the grant of special leave is an exercise of judicial power and need not be made by all Justices.

Jurisdiction
Australia
Procedural Posture
Constitutional Challenge / Final Determination by Full Court
Outcome
constitutional challenge dismissed; demurrers allowed; actions dismissed; appeals dismissed as incompetent
Legal Topics
['validity of Statutory Provisions Restricting Appeals' 'special Leave to Appeal' 'judicial Power' 'exceptions and Regulations Under S.73 Constitution']
['constitutional Law' 'appellate Procedure'] ['validity of Statutory Provisions Restricting Appeals' 'special Leave to Appeal' 'judicial Power' 'exceptions and Regulations Under S.73 Constitution']

Case Brief

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Procedural Posture

Constitutional Challenge / Final Determination by Full Court

Legal Issues

  1. 1 ["Whether s.33(3) of the Federal Court of Australia Act 1976 (Cth) and s.35(2) of the Judiciary Act 1903 (Cth) are invalid as exceeding Parliament's power under s.73 Constitution" "Whether the High Court's discretion to grant special leave requires constitution by all Justices" "Whether requiring special leave to appeal is a valid 'regulation' under s.73 of the Constitution"]

Ratio Decidendi

Sections 33(3) of the Federal Court of Australia Act 1976 (Cth) and 35(2) of the Judiciary Act 1903 (Cth), requiring special leave to appeal, are valid 'regulations' under s.73 of the Constitution and do not prevent the High Court from hearing and determining appeals; the grant of special leave is an exercise of judicial power and need not be made by all Justices.

Court Disposition

constitutional challenge dismissed; demurrers allowed; actions dismissed; appeals dismissed as incompetent

Orders

  • ['Smith Kline & French Laboratories: Questions reserved answered—s.33(3) not invalid; Court need not be constituted by all Justices; plaintiffs to pay costs of questions reserved' 'Demurrer of third defendant allowed; plaintiffs to pay costs of demurrer; action dismissed with costs' "Carson v John Fairfax & Sons...