Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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22 December 1975 - High Court of Australia

Barwick CJ, Stephen, Mason and Jacobs JJ

S 86 of the Judiciary Act 1903-1973 empowers the Court to make Rules of Court necessary or convenient to be made for carrying into effect the provisions of the Act or so much thereof as relates to the practice and procedure of the Court. The rules of this Court made pursuant to this power provide that an application for leave or special leave to appeal shall be made to a Full Court by counsel.

It is submitted that this rule is invalid because it is repugnant to s 78 of the Act which provides that in every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by the laws and rules regulating the practice of those Courts respectively are permitted to appear therein. The first question is one of construction, namely, whether an applicant for special leave is a party within  the meaning of s 78.

In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court. Secondly, the application must exhibit features which attract the Court's discretion in granting leave or special leave. There is no right to leave or special leave. In the latter case, the matter must involve questions of general public importance. The special nature of the application must be maintained in contradistinction to proceedings inter partes brought as of right or pursuant to the Court's leave. This distinction is well maintained by such a provision as O. 70, r. 2(6). We do not think that an applicant for leave or special leave can be described as a party within the meaning of s 78 of the Act.

Not being controlled by s 78 in respect of applications for leave or special leave, it is for the Court to determine by its procedural rules how such an application shall be made, that is to say, whether in writing or orally and whether to the Court or to a Justice and whether or not only by counsel. In our opinion, O 70 r 2(6) is not inconsistent with the provisions of s 78 and is valid.

By special provision in criminal cases an appellant may present his case and his argument to the Court in writing if he so desires, and, if he does so, it is not necessary for him to appear or to be represented upon the hearing of the appeal: O. 70, r. 32(1). In practice, this concession has been extended to persons in custody who wish to apply for special leave to appeal, though it may be doubted whether the Rules allow of this practice.

Order 70 r 32(2) provides that an appellant who is in custody is not entitled to be present on the hearing of his appeal, or of his application for leave to appeal, without the leave of the Court or a  justice. On an application for special leave, an appellant in custody, even if he were present by leave of the Court or a Justice, could not under the Rules personally make the application for special leave. Therefore, in the present case, the application for leave to be present is misconceived in so far as it seeks to obtain the right to make the application for special leave in person.

We do not find it necessary to determine whether this Court could in an appropriate case make an order for production before this Court of an appellant or applicant in custody. It has apparently been held that there is no inherent jurisdiction: Horwitz v Connor 1908. Whether or not the order could be made under s 44 of the Prisons Act 1952 NSW, as amended, would depend upon whether the provisions of that section were applicable to the case. They are not applicable to the present case because no reason for production of the applicant is disclosed. The only reason suggested is in order that the applicant might personally make his application for leave but, as we have already indicated, the Rules make no provision for him so doing. It might be mentioned that in the present case it was made quite clear to the Court that it was not the unavailability of legal representation either through lack of means or otherwise which led to the application to  appear personally. Generally, such a reason is not likely to exist as legal aid appears to be readily available. For these reasons we would refuse the application.

McTiernan J

Since the completion of the argument in this matter, I have discovered that I was a signatory of the Rule of Court which introduced O 70 r 2(6) into the Rules of the Court. No objection to my sitting in the matter was made on behalf of the applicant but, if my opinion had been decisive of the result of this application, I would have withdrawn it to clear the way for a re-argument of the matter. However, as it is clear from the reasons for judgment prepared by my brother Justices, which I have had an opportunity of reading, that my opinion will not be decisive, I feel at liberty to express that opinion.

I would not construe s 78 of the Judiciary Act 1903-1973 as giving an absolute right to a party to appear personally. It lays down a rule of practice that a party may appear for himself or by counsel but that does not mean that the Court is obliged, by this section, to hear him personally regardless of the circumstances.

The Court is master of its own practice. Rules of practice have been made pursuant to s 86 of the Judiciary Act. It should be noticed that the power extends to rules which are necessary or convenient for any of the stated purposes.

In my opinion the Rules which are called in question are within the area which the judges could reasonably consider is covered by the criterion of convenience.

ORDER - Application refused.

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