House v R [1936] HCA 40 | 17 August 1936

ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).

The exercise of a judge’s discretion may be reviewed on appeal if the judge:

  • Acts on a wrong principle.
  • Allows him or herself to be guided by extraneous or irrelevant matters.
  • Mistakes the facts.
  • Fails to take into account a material consideration.

If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”


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