Dahms v Brandsch

[1911] HCA 55

13 CLR 336

BRANDSCH Original jurisdiction of High Court-The Constitution (63 &64 Vict. c. 12) sec. 75

-Matters between residents of different States. PERTH,

On a motion for judgment in an action in the High Court for foreclosure of an equitable mortgage by deposit of title deeds of land in Western Australia, the mortgagee being a resident of South Australia and the mort- gagor's place of residence being unknown,

Held, that the High Court had no jurisdiction, it not having been estab- lished that the parties at the time of the bringing of the action were residents of different States.

13 CLR 337

MOTION for judgment.

An action was brought in the High Court for foreclosure of an equitable mortgage by deposit of title deeds of land in Subiaco, Western Australia. The plaintiff at the time of the bringing of the action was resident in Adelaide, South Australia. The defendant when last heard of, in 1894, was living in Melbourne, Victoria.

J. M. Solomon for the plaintiff. The application is made under Order XI. rule 9 and Order XXVI. rule 7 of the Rules of the High Court 1911.

[GRIFFITH C.J.-The Court cannot assume jurisdiction, under sec. 75 of the Constitution, on a matter of speculation. Where is the defendant resident now ? The action should have been brought in the Supreme Court of Western Australia. Order XI. rule 1 of the Rules of that Court gives jurisdiction in plain terms.]

GRIFFITH C.J. The High Court has original jurisdiction in certain cases only, one of them being in matters "between resi- dents of different States." In this action it is sought to take advantage of this jurisdiction. The Court must therefore be satisfied that the plaintiff and defendant are residents of different States. The plaintiff is a resident of South Australia. All that we know about the defendant is that in the year 1894 he was a resident of Victoria, and upon the evidence he ceased to be a resident of that State soon after. Under these circumstances it is impossible to say affirmatively that this is an action between persons who were at the time of the bringing of the action residents of different States. So far as the evidence goes, it appears that the Court has no jurisdiction, and the only order that can be made is that the action be dismissed. It is satis- factory to know that the plaintiff has a complete remedy under the Rules of the Supreme Court of Western Australia.

Action dismissed. Solicitor, for the plaintiff, J. M. Solomon.