Bayne v Blake

[1907] HCA 71

944 HIGH COURT

[1907.

[HIGH COURT OF AUSTRALIA.]

BAYNE AND ANOTHER A ppe l l a n t s

;

P l a in t if f s ,

A.VD

BLAKE AND ANOTHER

R e spo n d e n t s .

D e fe n d a n t s ,

H.C. or A. Pfaclice.—Appeal to Privy Council from judgment of High Court—Stay of pro-

1907. ceedings.

The Privy Council having granted special leave to appeal from a judgment

S ydney, of the High Court in its appellate jurisdiction by which the cause was remitted

1906, Her. 14.to the Supreme Court of a State for inquiries, proceedings under such judg­

M elbourne,ment pending the appeal were stayed, on payment into Court of the taxed

1907, March

costs of the appeal to the High Court. The Court, in the absence of special

6, 15.

circumstances, refused to remove the stay.

Griffith C.J.____

S ummons.

In Chambers. In an action upon an administration bond brouglit in the

Supreme Court of Victoria by the plaintiffs, Lila Elizabeth Bayne and Mary Bayne against Arthur Palmer Blake and William Riggall, judgment was given for the defendants. Against that judgment the plaintiffs appealed to the High Court which gave a judgment declaring that the plaintiffs were entitled to recover such a sum, not exceeding £5,000, as should represent the loss to the intestate’s estate by reason of certain breaches of the bond, and remitting the cause to the Supreme Court for inquiry as to the amount of such loss; Bayne v. Blake (1).

From this judgment special leave to appeal was granted to the defendants bj’ the Judicial Committee of the Privy Council, but no order was made by that Court staying proceedings under the judgment of the High Court.

(1) 4 G.L.R., 1.

4 C.L.Tl.] OF AUSTRALIA.

945

H. C. OF A.

The defendants now by summons sought a stay of the pro­ ceedings under the judgment of the High Court pending the

1907.

hearing of the appeal to the Privy Council.

B ayne

V.

B i.ake.

K'uooi K.C. and Clive Teece, for the defendants, offered to pa}’ into Court the taxed costs of tlie appeal if the stay should be granted.

H. E. Manning, for the plaintiffs, asked for the costs of the application, citing Cooper v. Cooper (1).

G r if f it h C.J. made an order staying all proceedings under the judgment of the High Court until further order, on the defendants paying into Court the taxed costs of the appeal to the High Court, and directed that the costs of this application should abide the event of the appeal to the Privy Council.

.

*

Mdroh 6.

The formal order of the Judicial Committee having arrived

from England, the plaintifis now applied on summons to have the

stay removed.

Arthwr for the plaintiffs in support cited Shaiv v. Holland (2).

WeUjall K.C. for the defendants rontrd.

Cur. adv. vnlt.

G r if f it h C.J. read the following judgment:—

Afan-h 15,

According to the English practice a stay of inquiries pending an appeal to the House of Lords will not be granted except under very special circumstances: Shaw v. Holland (2). If there were danger of the necessary evidence being lost by delay, a stay would, no doubt, be refused. The institution of an appeal to this Court operates automatically as a stay of proceedings under the judgment appealed from, unless security is given by the party desiring to proceed. In the present case special leave has been given by the Judicial Committee to appeal from a decision of this Court directing inquiries to be made in the Supreme Court. The

(1) 2 Ch. D„ 492.

(2) (1900) 2 Cli., 305.

946 HIGH COURT

[1907.

H. C. OF A. appellants desire to proceed with the inquiries pending the appeal,

and as proceedings under the judgment ô this Court have been

Baynestayed until further order they apply for the suspension of the

V.

stay. 1 think that in such cases the analogy of appeals to ttie High Court should be followed rather than that of appeals to the House of Lord.s.

B la ke .

At first I was disposed to think that the removal of the stay would not prevent an independent application to the Supreme Court to stay proceedings. But on consideration I think that it would have that effect so far as the pending appeal to tlie King in Council was relied on as a ground for a stay, although it would not prevent a postponement of proceedings on special grounds.

At present I do not see any sufficient ground for removing the stay. The summons will be adjourned generally with leave to bring it on again if the parties are so advised.

Application refused.

Solicitor, for plaintiffs, F. S'. Stephen, Melbourne.

Solicitors, for defendants, Blake & Riggall, Melbourne.

B. L.

[HIGH COURT OF AUSTRALIA.]

McGEE

I n f o r m a n t ;

WOLFENDEN

D e fe n d a n t s .

H. C. OF A.

1907.  Ex PARTE McGee,

M elbourne, SPECIAL LEAVE TO APPEAL.

March 12.

Griffith C.J.,

Lictmiwj Act 1906 [Viet.) {No. 2068), see. 91—S^mday—Hours during which sale

O’Connor, and Barton, of liquor to public is prohibited—Person found on licensed 'premises—Special

Hig^ns JJ.

leave to appeal refused.