Practitioners seeking special leave to appeal on jurisdictional grounds not raised below should note that the Court may apply the analogy of the prohibition rule and refuse leave, particularly where the amount involved is small.
Zimpel v Allard [1904] HCA 56; (1904) 2 CLR 117 (13 October 1904) HIGH COURT OF AUSTRALIA Zimpel Defendant , Appellant ; and Allard Plaintiff , Respondent . H C of A Griffith C.J., Barton and O'Connor JJ. 11 October 1904, 13 October 1904 Griffith C.J., , Barton and O'Connor JJ. Per Curiam.—We think that this application should not be decided ex parte. Notice of motion must be given to the plaintiff. Griffith C.J. This is an application for special leave to appeal from a decision of the Full Court. The case, according to the evidence, is one involving property worth, according to the most favourable valuation, about £20 a year, the difference between the annual value and the rent. The question of law which Mr. Alcock desires to raise is whether the judgment of the Local Court is conclusive for the purpose of founding an action of ejectment. Of course, there is no doubt that the judgment of the Local Court is not conclusive, except in matters within its jurisdiction. The learned Judges of the Supreme Court seem to have thought that the jurisdiction of the Local Court could not be disputed unless it had been disputed in that Court. It is not quite clear that that was their view, but if it was, it is inconsistent with the case of Mayor of London v. Cox [1]. In the present case it appears that, before the Local Court itself, the jurisdiction of that Court was not disputed. A purely technical point was taken upon which the present appellant failed. He appealed to the Supreme Court, and failed there; and, in consequence of the delay which had occurred, the order made by the Local Court could not be enforced. Proceedings were then taken in the Supreme Court. The question for us is whether, supposing the Supreme Court to have made a mistake in regard to the law governing the effect of judgments of inferior Courts, this Court should give leave to appeal in a case where so small an amount is involved. The application is, in effect, to be allowed to impeach the verdict of the Local Court on the ground of want of jurisdiction. True, the appellant was, at one time, entitled to impeach the judgment on that ground. So any party is entitled to impeach a judgment of an inferior Court by way of prohibition if it exceeds its jurisdiction. But this right may be lost. In the case of the Mayor of London v. Cox , which embodies the whole law of prohibition, the rule was stated by Mr. Justice Willes as follows [2]:—"Where, however, the defect is not apparent, and depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the Court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give jurisdiction, yet, considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right, is not of course, the Court would decline to interpose, except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant. The objection in such cases is, that the applicant comes too late; not, as here, that he comes too soon; and the cases cited at the bar as to applications after sentence are therefore inapplicable." That is the rule that applies to taking objection to jurisdiction by way of prohibition. Applications to this Court for special leave to appeal are not granted as of course. We think that the analogy of the rule just stated may very well be applied when special leave is asked for the purpose of raising an objection which would not have been allowed to be taken by way of prohibition, especially when the value of the property involved is so small. For these reasons we think the application should be refused. Leave refused. Solicitor, for appellant, F. Morley Alcock . Solicitor, for respondent, J. M. Speed . Endnote [1] L.R., 2 H.L., 239. [2] L.R., 2 H.L., at p. 283.