Appeals · Discretionary decisions
House v The King: appealing a discretionary decision
An appeal against a discretionary decision, such as a sentence, does not succeed just because the appeal court would have decided differently. House v The King (1936) 55 CLR 499 sets out when error must be shown and how it can be inferred.
Last updated 9 November 2026
In short
- An appellate court does not substitute its own discretion just because it would have reached a different result.
- Specific error: acting on a wrong principle, being guided by irrelevant matters, mistaking the facts, or failing to consider a material matter.
- Inferred error: where the result is unreasonable or plainly unjust, the court may infer that the discretion miscarried even if the error cannot be identified.
- Some decisions are not discretionary and are reviewed for correctness instead.
The test
House v The King [1936] HCA 40; (1936) 55 CLR 499 was a sentence appeal. In the joint judgment of Dixon, Evatt and McTiernan JJ at 504 to 505, the Court said that it is not enough that the members of the appellate court would have exercised the discretion differently. Error must be shown.
The Court described two ways error appears:
| Limb | What it means | Examples |
|---|---|---|
| Specific error | The judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide them, mistook the facts, or did not take into account a material consideration. | Applying the wrong maximum penalty; treating a mitigating factor as aggravating; overlooking a plea of guilty. |
| Inferred error | The result is so unreasonable or plainly unjust that the appellate court infers that the discretion was not properly exercised, even though the error cannot be pinpointed. | A sentence that is manifestly excessive or manifestly inadequate. |
Read the judgment in the case index: House v The King [1936] HCA 40.
Beyond sentencing
The same standard governs appeals from discretionary decisions in civil proceedings, such as costs orders, adjournments, case management decisions and many interlocutory orders. Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 applied it to property orders under the Family Law Act 1975 (Cth).
When the correctness standard applies instead
Not every evaluative decision is discretionary. Where the law admits of only one correct answer, an appellate court decides the question for itself. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 the High Court held that a primary judge’s conclusion that an administrative decision was legally unreasonable is reviewed for correctness. In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 the Court held that a decision to grant a permanent stay is not discretionary and is reviewed for correctness.
Drafting grounds of appeal
- Frame specific-error grounds around the precise principle, fact or consideration that was mishandled.
- Plead manifest excess or inadequacy as a separate ground, and support it with comparable outcomes and the statutory maximum.
- Remember that even where error is found, the appellate court may conclude that no different outcome is warranted.
Frequently asked questions
What is House v The King error?
Error in the exercise of a discretion, shown either specifically (wrong principle, irrelevant considerations, mistaken facts, failure to consider a material matter) or by inference where the result is unreasonable or plainly unjust.
What does manifestly excessive mean?
It is the inferred-error limb of House v The King applied to sentencing: a sentence so far outside the range that error must be inferred.
Does House v The King apply to all appeals?
No. It applies to discretionary decisions. Questions with only one correct answer are reviewed on the correctness standard.
Sources
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