Obviously, they just wanted an opportunity to write a judgment on the issue. Clearly they thought that the national importance of the case outweighed the certain failure of the appeal (two primary relevant considerations in a grant of special leave).
I would be interested if anyone knows any other case that has been allowed special leave and then dismissed so summarily.
[**UPDATE 16/04/10: Transcript now available on Austlii.]
[**UPDATE 16/06/10: Reasons have been delivered - see here.]
I'm not sure of the Court's jurisprudence on this point but I can comment on the statutory side. There is nothing unusual about this in light of section 35A of the Judiciary Act 1903.
ReplyDeleteThat section does not require them to take into account the appeal's prospects of success. Reading that section, it seems to me that Dupas' appeal was granted special leave because it was important to get an authoritative ruling on the point, especially one from a unianimous court. This need was made particularly plain by Ashley JA's dissent in the Victorian Court of Appeal which is lengthy, detailed, persuasive, and hinged on differences between reasons given by different High Court judges in a single case.
When the Court uses "likely to fail" as a criterion for refusing special leave, they do so out of their own discretion and not pursuant to any statutory requirement. Section 35A allows them to have regard to, in addition to the mandated matters, whatever they like.
Good point, James. Given that the Act specifically refers to 'importance' and does not specifically refer to 'prospects of success' there's no reason that the Court shouldn't be doing this more often. However they quite often refuse to consider a matter, at least ostensibly, on the prospects ground alone. (Although, perhaps they are impliedly asserting that there is no important question of law either.)
ReplyDeleteCompletely random example: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCASL/2010/77.html