• Survive Law

House v The King (1936) 55 CLR 499

Updated: Jul 20

Appeals, Discretionary error, legal principles

Facts; Under the Bankruptcy Act 1924 (Cth) Everard House was changed in relation to the following offences; (1) Failing to satisfactorily account for his losses before the Court.

(2) Attempting to account for losses by fictitious racing losses

(3) Obtaining bath heaters (yes you read that correctly) on credit under false pretences.

(4) Pawning said bath heaters

(5) Further contributing to his bankruptcy via gambling The primary Judge acting in the Court of Bankruptcy, only sentenced him to the fourth charge in addition to three months imprisonment with hard labour. Although the plaintiff agreed to the charge, House contested that the punishment was too harsh and consequently appealed the case to the High Court. Issue(s) at Law; The High Court indicated that there were two primary issues up for determination:

(1) The Court had to consider whether an appeal lay by way of right. The Court held that under s73 of the Constitution, it did. This is because s73 of the Constitution gives the court ‘jurisdiction to hear and determine appeals from judgements, decrees, orders or sentences of a Federal Court.’

(2) Secondly, the court had to consider the severity of the sentence. Was it really excessive? The Court applied the ordinary principles against an exercise of discretion and found that they were unable to interfere with the primary judge. The Court did, however, make the determination that the punishment was not the result of judicial error, unreasonable or clearly unjust. Law; One of the reasons this case is so important is because it indicates how to approach an appeal against an exercise of discretion. It is insufficient that appellant judges, consider that they may have chosen a different outcome by way of their own discretion. The key principle to understand in this case is that it must appear that an error at law occurred at the time of the judgement. Application; When the nature of the error is not immediately obvious the exercise of the discretion is reviewed on the grounds that a substantial error has occurred. (Dixon, Evatt and McTiernan JJ at 504-5).



Holding; The High Court dismissed the appeal.

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